(Blog Masters Note: Over a year ago, I was almost ticketed for not wearing a seat belt, got a warning notice instead. I asked Frank ‘Austin’ England III how I could proceed if I had gotten the ticket. Then we will proceed with an attachment that was e-mailed to me by Frank on the above title.

Do you sign citations in New Mexico? We don’t here, because someone had litigated the issue of a compelled contract and the state bailed before the precedent went the wrong way.

I return the citation to the issuing officer with . . .

RETURNED FOR CAUSEWITHOUT COMMERCIAL DISHONORAND NO RECOURSEWITHOUT PREJUDICE UCC 1-308

________________________thumb print in red ink as your seal Signature

Got lots more on the statutory process and said process being private for profit copy right law . . . the statute can’t be enforced, it must be sold by the law merchant . . . that being the cop . . . but be careful not to go into controversy! I always ask the cop “Do we have an appointment?” and begin having fun from there , , ,I told him I was not sovereign yet. Absolutely . . . don’t get into the sovereign issue . . . boils down to you exercising your “natural right” to travel” in lieu of being regulated in commerce . . . all you are, is a customer of the DMV . . . you are being “treated” as a “driver”. You are simply the “Holder” (holder in due course) of the “License” that is needed to be in your possession for the law merchant to do business with you under the commerce clause, it is not your license, it belongs to the DMV. At the actual presentment of the citation, you can note, without prejudice UCC 1-308 and sign your name . . . this is the remedy built into the Uniform Commercial Code and you have the right to exercise that right. After you sign the citation, go home write across the face of the copy what I suggested and return it to the agent who made the offer. (be sure to get his or her complete name and the address of their office or barracks. When he stops you, he is acting in the nature of a police officer . . . then he makes the offer, he changes his hat and goes into law merchant mode and tries to sell you the statute . . . I tell them I’m not interested in doing business with them . . . they are dealing in private for profit copy right law, a law that cannot be enforced, only offered for acceptance . . . I’m not interested, what’s my consideration? See the attachments.

RATIFICATION OF COMMENCEMENT OF THE ACTION By Joinder of a Trustee for the “Beneficiary” of the Trust

Title 28, Rules, Rule 17

Rule 17. Parties Plaintiff and Defendant; Capacity

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest.

An executor, administrator, guardian, bailee,trustee of an express trust, a party with whom or in whose namea contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interestuntil a reasonable time has been allowed after objection for ratification of commencement of the actionby, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

[emphasis by me] (Frank ‘Austin’ England)

(b) Capacity to Sue or Be Sued. The capacity of an individual, other than one acting in a representative capacity, to sue or be sued shall be determined by the law of the individual’s domicile. The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized. In all other cases capacity to sue or be sued shall be determined by the law of the applicable state, except (1) that a partnership or other unincorporated association, which has no capacity by the law of its state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States, and (2) that the capacity of a receiver appointed by a court of the United States to sue or be sued in a court of the United States is governed by Title 28, U.S.C., Sections 754 and 959 (a).

(c) Infants or Incompetent Persons. Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by a next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

“Your honor, I am the creditor and trustee. Do I have standing to speak?”

Another thing I heard on a Jack Smith audio, and this too was very interesting, was about a man that had to go into court on a ticket.Here’s what he said when his name was called, and he was still outside the bar.

“Your honor, I am the creditor and trustee, do I have standing to speak?”

“I am the creditor and trustee of my independent account in the public trust, is the claimant present so I may accept his offer and close this account?And the judge was silent. So the guy said“How can we proceed without a claimant or agent coming forth on behalf of the claimant?”and the judge said “remove yourself from my courtroom immediately!

The guys next move, if he would have had the opportunity or the judge would attempt to push the courts bluff, would have beento appoint the judge as the agent/fiduciary for the claiment, so the judge would have had to appoint a trustee to settle and close the matter.

If thebondingcompanycompelstheprosecution and the acts of the officer are clearly criminal, then the bonding company can argue for release of the liability of the bonding company for the officer’s actions, providedthebond was written to dissuade(discourage)_criminalacts.

Since the prosecutor must have a bond in order to be a prosecutor in fulfillment of his job description, it follows that the bonding companies collectively have the power to compel the prosecutor to prosecute on the criminal charges to attempt to vindicate the officer and to protect the relevant (directly affected) bonding company from a claim, or to minimize the claim against the bonding company.

If the Bonding Company Does Not Compel Prosecution

If the bondingcompanydoes not compelprosecution, then the first claim of liability is against the bonding company up to the face value of the bond, and the remaining claim of liability is against the corporation and against the officer for the unpaid balance of the claim. The officer against whom the complaint and accusation has been made also has the right to defend his interests by demanding that he be prosecuted and vindicated. Both the complaining party and the prosecutor have the obligation to serve notice on the accused officer if the prosecutor will not prosecute, thereby giving the officer a chance to protect his interests by demanding a prosecution.

7.2 – Bonding of Attitude

1.The principles of economics are more and more being used to establish scientific bonding practices which eliminate the bonding, hence employment, of antisocial enforcement officers.

2. The bond on an enforcement officer is based on the officer’s socialattitude and pastperformance, that is, his “trackrecord.”3. An antisocial officer is generally defined as a person who:A. has a bad social attitude,B. thinks he is bonded for any sort of social behavior whatsoever,C. thinks he has to prove himself by being socially abusive or “macho” towards members of the general public. 4. Antisocial officers create bad enforcement situations which cause citizens to file malpractice claims with bonding companies.5. Therefore, a credible bonding company will not bond a known antisocial enforcement officer.

7.3 – Bonding of Education

Principle–Ignorance of the law is not an allowable excuse for a law enforcement officer to use when exercising the power to enforce the law.

An officer must know and understand all of the processes which must be bonded before he can act on an execution of judgment.

An officer, although presumably acting in his official capacity, has no commercial escape or grace through a bonding company when the statute he enforces is not bonded against accidental misuse. When an officer commits an accidental misuse of his office or of a statute, or accidentally acts on an unbonded statute, the bonding company will pay on the bond only to the extent of a reasonable degree of error or accident; but nothing in the agreement between the bonding company and the bonded party shall be construed to free the official or officer from investigating and knowing whether or not his own actions or the statute acted upon or enforced were adequately bonded; and whatever portion of the damage claim remains after the bonding company has paid its reasonable obligation to the bonded party, shall be paid out of the assets of the municipal corporation and/or out of the real and personal property of the official or officer who mis-acted.

An enforcement officer of a municipal corporation (city, county, state), who operates without a bond or who enforces an unbonded statute, is acting outside of the public hazard licensing and bonding statutes governing municipal corporations. A bonding company has no financial responsibility for such an officer. Such an officer is regarded to be out of uniform, outside the shield or veil of his official capacity, and is a common citizen operating upon his own personal liability and risk.

If an officer was deceived by the government (municipal corporation) for which he works, into performing his “duties,” namely, of accepting statutes, carrying out Judgments of execution, or exerting enforcement beyond limits of his bonding, then, the officer shall not have a claim on the bonding company, and his personal property shall become attachable for the satisfaction of claims of damages, and he will have to make his claim against his employer. In the case of an unbonded statute, the employer will have to make its claim against the state legislature and the state of these factors are:

1. The psychological stability and sociability of the officer (is he antisocial, does he have a good social attitude, is he reasonable?),2. the “track record” of his daily performance (past performance),3. how much legal education the officer has and what kind of legal education the officer has and what kind of legal education does he have relevant to the laws that he will be required to enforce,4.the specific performance (job description) of the officer being bonded, generally for the construction and advertisement of an unbonded statute. If a citizen knows how to enforce his civil remedies under the laws of commerce, and if the claim of the citizen for civil damages exceeds the face value of the bond, then the officer who victimizes that citizen can easily be bankrupted.

7.4 – Bonding of Specific Performance

Modern scientific bonding is based on a number of factors which mathematically determine the price of the wager (premium) charged by the bonding company. Some5. the types of unbonded statutes he will enforce,6. the types of bonded statutes he will enforce,7. the types of paper enforcement processes he will use, and,8. the types of enforcement acts he will engage in (especially the violent ones).

An officer is acting without the protection of a municipal bond, is acting on the municipal corporate assets, or is acting “out of uniform” and on his own personal liability if he:

1. behaves in a clearly antisocial manner,2. does not have an education in law adequate for his specific performance ia a law enforcement officer,3. is not adequately bonded for law enforcement, i.e., to enforce the law,4. does not have an adequate identification card or does not show his identification card when necessary,5. acts on an unbonded statute, and/or6. violates a citizen’s U.S. or state constitutional rights or equal protection of the laws.

The identification card of a law enforcement officer declares the authority of the officer to act by:

1. stating the specificperformance of his job for which he is bonded, such as the class of statutes he is bonded to enforce.2. stating that he is licensed and bonded,3. stating the nameofthebondingcompany which is bonding the executive acts of the officer, and4. stating the bond (policy) number of the officer’s bond (insurance).

An officer who cannot or does not display his official identification card is deemed out of uniform and acting as an ordinary citizen on his own personal liability. His personal property is then the true pledge underwriting his authority.

Liability by Association

An officer can be sued for the injury caused by the act(s) of another officer, if the act(s) was committed and the injury was caused while the two officers worked together. The assessment of the transfer of liability rests upon such concepts as reasonable diligence, accident, neglect and conspiracy.

7.5 – Authority

1. A statute has no socialauthority or the capacity to be enforced without an author, and has no author without the assumption of social,liability or financial responsibility for the statute authored.

2. Any attempt to exercise socialauthority by enforcing a statute without assuming a corresponding measure of socialliability for the enforcement of the statute constitutes fraud.

The only authority which an official, officer or clerk of a government (e.g., municipal corporation) has to use,actupon, or enforce a statute resides in or arises out of the financialresponsibility for the acts and actors as follows:

1. the legislation-construction of the statute,2. the content of the statute itself,3. the judication–the exercise of the judicative power,4. the judicative process itself,5. the execution-the enforcement paper process which is used as a reason to enforce the statute,6. the enforcement act of the enforcement officer, and7. the enforcement officer.

This financialresponsibility for the acts and actors will usually be provided from one or more the following three sources:

1. the bonds on the acts and the actors (insurance on an official act or person),2. the sacrifice, forfeiture or pledge of the personalproperty, real or movable, of thegovernmentcorporateproperty,real or movable, or,3. the sacrifice, forfeiture or pledge of the personalproperty, real or movable, of the official,officer or clerk who is using, acting upon or enforcing the statute.

The total value in property or money extractable from these three sources must be sufficient to sustain a suit at law and pay for the damages caused as a consequence of using, acting upon or enforcing the statutes; that is, in defense of each specific performance of the jobs or of the persons, the said performance of said jobs being the product of the government known as public service.

A government official, officer or clerk who is not bonded or who loses his bond, shall be held financially responsible for his own actions. He shall have, as the only support for his own authority, the pledge of his own personal property, real and movable, to satisfy the damages which he causes to citizens by the exercise of that authority.

7.6 – Bonding Municipal Corporations

Many municipal corporations (city, county, state) have quietly chosen to operate without malpractice bonding in violation of state corporate public hazard bonding laws because their bonding is expensive. Often municipal corporations claim to be “self bonded,” but because civil rights suit claims are often, and properly, astronomically large, such in-house bonding is actually fraud, and passes liability on to the officials, officers and clerks of the municipal corporation. Municipal corporations have had to resort to lies and deceptions concerning the bonding of their officers in order to get their officers to put on a uniform and go out to fight for the corporation. The officers are not told that their public hazard bond is not adequate, and they are not told that if their onthe-job activities involve them in a situation where the face value of the bond is not sufficient to cover an injury (physical, mental, emotional, legal, etc.) to a public citizen, that then the citizen will have the right to sue the officer for a sufficient amount of the officer’s personal property (real and/or movable) in order to be paid the difference between the amount of the damage claim and the face value of the bond.

A municipal corporation will lose its executive enforcement bond or be rendered unbondable:

1. if it hires an enforcement officer and sends him out into the public to do official enforcement duties without bonding his enforcement processes and actions. The officer must be provided with a written notarized declaration of his job description;2. if it fails to tell an officer or clerk that he is not adequately bonded, the officer must be provided with a written notarized declaration of his bonding status;3. if it fails to issue an identification card to an enforcement officer declaring:

A. that the officer is bonded,B. the name of the officer,C. the officer’s enforcement classification,D. the name of the municipal corporation for which he works,E. the name of the bonding company which is bonding his enforcement,F. the bond (policy) number of the officer,G. the address and/or telephone number of the bonding company (bonding companies may want to know who is cheating them. Many municipal corporations are not adequately bonded and never tell their employees about it),H. a picture of the officer.

4. if it does not provide a law enforcement officer with a sufficient education in law and process so that the officer can properly carry out his law enforcement duties as agreed to in his job description,5. if it engages an enforcement officer to enforce an unbonded “statute” which by its hazardous nature must be bonded, or6. if it engages an enforcement officer to violate a citizen’s U.S. constitutional[ly secured] rights or equal protection of the laws.

8.0 – EXECUTIVE CONTROL

The control/enforcement process of an executive/enforcement officer will be bonded only if the bonding company finds that:

1. before executing an order of execution the officer had in his possession:

A. a faithful recap (recapitulation) of the case representing both sides of the argument, hand-signed by the author of the recap (who is liable for his recap),B. an original hand-signed verified bonding check list of the complete court process,C. an original hand-signed copy of the judgment and the order of execution of judgment,D. a proper personal identification card including:

i that the officer is bonded,i. the name of the officer,ii. the officer’s enforcement classification,iii. the name of the municipal corporation for which he works,iv. the name of the bonding company which is bonding his enforcement,v. the bond (policy) number of the officer,vi. the address and/or telephone number of the bonding company, andvii. a picture of the officer,

E. a proper personal business card which the officer could hand out to the public and to the person(s) arrested, containing all of the same information as given in Part (1) (D) except for the picture, because of the expense of picture cards.

9.0 – EXECUTIVE OUTPUT

The output/enforcement act of an executive/enforcement officer will be bonded only if the bonding company finds to its satisfaction that, taking into consideration the urgency and hazard of the situation, the officer while enforcing the paper process acted in a reasonable manner as regards:

1. the reading and understanding of the recap,2. the reading and understanding of the verified bonding list,3. the reading and understanding of the judgement, and4. the reading and understanding of the order of executionofjudgment, And whenenforcing5. properly identifying himself,6. properly serving necessary papers, and7. properly notifying people of their rights.

9.1 – Bonding Jail. Procedure

A government, or an official, officer or clerk of a government, will lose its/his bond, will not be bonded and will not be bondable if a person, hereinafter referred to as the “prisoner,” which it/he handles, who has been charged and arrested but who has not been convicted:

1. has been denied or delayed anything, or any right, or the equal protection of the law necessary for the prisoner’s defense which an uncharged and unarrested citizen would have at his use, service and disposal,

2. has been denied or delayed legal paperwork in the prisoner’s case, including but not limited to affidavits of accusation, police reports, arrest warrants, mailing addresses for the delivery of all leg paperwork, etc.,

3. has been denied or delayed. the assistant counsel of, or communication with any lawyer, attorney, spouse, relative, friend, non-union paralegal, non-union lawyer, etc., needed for his personal safety and legal defense,

4. has been denied or delayed necessary appearances and opportunity to speak before a judge in court and on the court record (“necessary” as defined by the prisoner, not as defined by the jail. Ear, the judge or the court), and/or consideration from the jailer, the judge of the court, and/or a hand-signed record of the proceedings before the judge and the court,

5. has been denied or delayed a copy of anything: (A) the prisoner has signed while entering or dwelling in the jail, or (B) the prisoner has been required to sign while entering or dwelling in the jail (“It is best not to sign anything.”),

6. has been denied or delayed the physical basics; namely, light, heat, simple comforts, rest, writing materials or any other obvious physical means necessary to compose, write and perfect the prisoner’s defense, said basics to be provided at no cost to the prisoner,

7. has been denied or delayed the opportunity to effectively file counter complaints against the prisoner’s accusers, and those who have handled and processed the prisoner’s case (see also 4.0 Judicative Input,_specifically),

8. has been denied or delayed a readable copy of the Holy Bible printed in a language in which the prisoner is educated or fluent,

9. has been denied or delayed access to law books of the prisoner’s choice,

10. has been denied or delayed medical needs. NOTE: The county shall provide all of the above services immediately to the un-convicted prisoner at no cost to the prisoner. Any county which fails to meet the above criteria will itself be totally liable for its own acts. It is not inconceivable that a county violating the above criteria could accumulate over one hundred million dollars worth of civil damages in one day’s time involving only one prisoner, and no credible bonding company wants anything to do with that kind of obligation.

– In Conclusion –

According to the equitable authorities at law in regard to state-created marriages, any property sought after belongs to both parties/spousal, therefore, both are responsible for their spouse’s action(s). Thereby, criminal complaints jointly affect in regard to liens. In short, bring the civil rights violators, wife/husband, into the court action also. Remember, all liens cannot be removed until the declaration is adjudicated and/or the claimant is satisfied.

In the wording of the published rules of the Ninth Circuit Court,“Go for the jugular vein.”

9.2 – Escalation

Further: A law enforcement officer will lose his bond if he oppresses a citizen to the point of civil. rebellion when that citizen attempts to obtain redress of grievances (U.S. constitutional 1st so-called amendment).

When a state, by and through its officials and agents, deprives a citizen of all of his remedies by the due process of law and deprives the citizen of the equal protection of the law, the state commits an act of mixedwar against the citizen, and, by its behavior, the statedeclares war on the citizen. The citizen has the right to recognize this act by the publication of a solemnrecognition of mixedwar. This writing has the same force as the Declaration of Independence. It invokes the citizen’s U.S. constitutional 9th and 10th so-called amend guarantees of the right to create an effective remedy where otherwise none exists.

“I found this insight on the UBC to be very perspicuous and most useful to the Patriot movement, but like all laws, it is useful only to the one(s) who use it and enforce it.”

Remember the etymon at the time of law’s creation and The Federalist Papers. (Read and discern until it’s perspicuous.)

“Prior law governs always.” “Prior etymons govern always.”

“To act in pro se fashion in a court of law or equity is to profess in law, thus, casting yourself to drift away from logic and into the arms of a fool.”

Study the UBC, file your “criminal complaints” in timely fashion, take their money or their hides for future parchment. MAXIM; (Universal Axiom of Law)

All people know that the foundation of law and the legal system exists in the telling of the truth, the whole truth, and nothing but the truth, generally by testimony, deposition, and/or by affidavit. Therefore, every honorable judge requires those who appear before him to be sworn to tell the truth, the whole truth, and nothing but the truth, and is compelled by the high principles of his profession to protect that truth and do nothing to tamperwiththattruth, either directly or indirectly, either in person or by proxy, or by subornation of the affiant or other person (subornation/extortion of perjury).

This instrument is an Affidavit of Obligation, also known as a Claim of Lien. This affidavit of obligation is a commercial instrument arising from a private or public contract, either express, constructive, and/or implied, which exists by the express, constructive, and/or implied consent of the Lien Debtor. Therefore, this Affidavit of obligation is a consensual commercial lien. This lien arises from the necessity to guarantee specific performance (oath) of the Lien Debtor. Therefore, this Affidavit of obligation is also a justcompensation commercial lien.

The Lien Claimant’s Claim of Lien is expressed as this Affidavit. A mere unsworn declaration is not sufficient grounds for a Claim of Lien because it does not attach commercial liability to the person making the claim of obligation upon a debtor. The person making the claim (the Lien Claimant) must assume the commercial liability for making a claim against the debtor (the Lien debtor) by issuing a sworn statement known as an Affidavit of Obligation which is given to the best of the claimant’s knowledge and belief to be the truth, the whole truth, and nothing but the truth, for which the claimant stands personally commercially responsible.

A declaration of obligation does not become a lien unless it is sworn to, in which case it is known by the stronger term, “Affidavit of Obligation.” A mere declaration of obligation is not a lien.

A “distress,” which essentially compels instant specific performance, being severe because of its instant effect, must be bonded. On the other hand, a lien, having a traditional three month grace period, allows ample time for a response, hence is regarded as commercially moderate, and, therefore, does not have to be bonded beyond the personal liability which it automatically imposes upon the Lien Claimant/Affiant. (The three day, three week, three month, and three year grace periods in American Law arise from the traditional numerology of ancient Hebrew and Jewish law. See Holy Bible,Old Testament.)

As would be the case with any other affidavit, deposition, or testimony, an Affidavit of Obligation (commercial/contract lien) may not be tampered with by any judge, other public official, or other person, and generally may be removed by only one or more of four means:

1. A satisfaction of the lien by the Lien Debtor.

2. A categorical point-for-point rebuttal (affirmation, denial, or explanation) of every element of the Lien Claimant’s claim, said rebuttal being also in the form of a commercial affidavit for which the Lien Debtor accepts full personal. commercial responsibility. If the lien claimant can rebut the lien debtor’s rebuttal, the lien stays in force.

3. A voluntary (unextorted) removal of the lien by the Lien Claimant (or his heirs and assigns, if such has been provided for).

4. A decision by an impartial jury duly convened and properly conducted (not tampered with by a judge, other public official, or other person).

The suspension of an Affidavit of Obligation is the suspension of the right to give testimony in one’s own behalf and is, therefore, in the nature of a suspension of the Writ of Habeas Corpus, a thing done only under the conditions of martial law, civil war, or mixed war.

A judge cannot interfere with, tamper with, or in any way modify testimony without rendering incredible the truth seeking process in his sacred profession and destroying the fabric of his own occupation, thereby committing professional suicide. Any judge who tampers with testimony, deposition, or affidavit, is a threat to the commercial peace and dignity of the State and of the United States, is in violation of the Supreme Law of the Land, is acting in the nature of a foreign enemy, and is justifiably subject to the penalties of treason; God’s speed.

A lien implies impoundment of property. A breach of the said impoundment, also known as pound breach, and is a felony.

A bill in commerce is a private declaration of obligation. A lien in commerce is the same bill made public with a commercial affidavit attached in support of the bill. When a lien instrument is composed and made public, either by filing in the Office of the County Recorder or by any other method of open and wide publicity, a copy of the Claim of Lien must be provided for the Lien Debtor so that the Lien Debtor will thus be enabled to defend against the lien. To guarantee that the Lien Debtor has an ample grace period of three months to defend against the lien, the grace period does not begin until a copy of the Claim of Lien or a Notice of Lien is in the possession of the Lien Debtor. If only a Notice of Lien is supplied to the Lien Debtor then the Claim of Lien must be filed in a place of public access such as the County Recorder’s Office, or other such public place clearly specified in the Notice of Lien/Affidavit of Obligation, and therefore cannot be lawfully entered by the County Recorder on a County, State or Federal Lien Index.

A Claim of Lien exists upon the property of a Lien Debtor even if a copy of that lien is only witnessed and in the possession of the Lien Debtor. However, if the Lien Debtor commits poundbreach by a sale, transfer, or assignment of the liened property to some third party, the Claim of Lien does not travel along with that property and attach commercial liability to the said third party, unless the Claim of Lien has been filed in the County Recorder’s Office of the county affected by the lien, or said Claim of Lien has otherwise been satisfactorily publicized. If any attempt is made by any public official to impair the lien process by compelling the county recorder to refuse to file the Lien Claimant’s Claim of Lien, then any alternate publicity of the Claim of Lien with reasonable diligence is to be considered adequate publication of the lien for the purpose of passing the obligation of lien forward to the new third party owner of the property, the property seized by the original Claim of Lien against the original Lien Debtor.

BONDING

DUN AND BRADSTREET re DEFACTO GOVERNMENT

There are a few more things worth noting regarding the DUN & BRADSTREET listing service:

D-B is a financial rating service for both ‘public’ and ‘private’ corporations. Utilities and municipal bond ratings would come under D-B perview for certain. It just really never occurred to me years ago when doing litigation discovery, research and analysis, and ‘structured settlements’ that there was seemingly anything incoherent with that fact that municipal and utility bonds are integral to D-B rating services. I never ever stopped to think about or scrutinize that fact, yet alone allow my deliberation and research skills to ‘wander’ or ‘wonder’ into research that would have disclosed what we recently found. Part of the ease of discovering the complex web of inter-related inter-locking CORPORATIONS had to do with ease of electronic research over the internet. Years ago, if one wanted to search anything within any of the rating services, including “Moody’s”, Standard & Poors, and Dun & Bradstreet, + others, one would have to either have to be a subscriber to the service in order to manually expedite their search-rating results, or, one would have to pay a fee and cause a search to arise.

D & B ‘ratings’ are effected everytime a ‘public hazard bond’, or ‘surety performance bond’, or ‘indemnity bond’ is complained against. An ‘administrative complaint’ is usually all that it takes to cause a ‘tag’ or book entry to be made on any particular bond. Any particular bond, once complained against three or more times, causes a change in underwriting bond ‘risk’.

For bonded Bar attorneys, who in many cases may also be appointed, commissioned, or elected to ‘public office’ as ‘Judge’, ‘Clerk of Court’, etc. when/if their bond is complained against for good and reasonable cause, their bond may be ‘pulled’, and due to loss of effective bond or ‘suretyship’, they cannot ‘practice’ or ‘discharge’ the duty of the office held, or occupied. In short, the bond maker-issuer is the bonding party for the benefit or on behald of the ‘bondee’, ie. the purported ‘public officer’, ‘employee’, or ‘official’. This would extend as well to all other ‘public employees’ and ‘agents’-‘agencies’, etc.

Every ‘person’ being bonded has a Dun & Bradstreet ‘bond rating’. At least it is reasonable to assume such. Once three complaints are filed against any bond, assuming they are with merit and well supported by fact and ‘law’ of the ‘breach’ of fiduciary duty, the bond is most always pulled or revoked.The ‘servant’ at ‘risk’ by assuming the responsibilities of operating in any ‘official capacity’ or by ‘employment’, can no longer be underwritten as a ‘no risk’ or ‘low risk’ contract.

One incident of ‘breach’ or operating ‘ultra vires’, or ‘without the law’, causes the ‘immunity’ provisions of the written ‘law’ to cease to be effective, because when one violates the law as a ‘public servant’, one’s immunity blanket ceases to apply, thereby leaving the insurer or bondsman or bond issuer exposed to the liability arising from the servant’s acts, which under any ‘breach of law authority’ causes or gives rise to an ‘injury’ which is a civil or criminal commercial liability.

Everything, whether civil or criminal or martial, is a matter of ‘commerce’, and admiralty law is the venue and jurisdiction by which disputes in/of commercial nature are resolved in truth and fact.

All writings of the United States of America and of the UNITED STATES, or any other ‘government unit’ are forms of making an ‘offer to contract’.

There is no written matter of material fact or issue of fact that is ‘law’ which is not bonded. There is no ‘office’ or function of ‘civil service’ or ‘public’ function that is not bonded. If the bond is not in existence, the bondee is ‘exposed’ and without ‘coverage’ by any ‘surety’.

Therefore, there is no ‘guarantor’ behind the agent, officer, official, or employee having ‘exposure’, by ‘assumption of risk’, of a material breach or injury in fact by the bondee [person being bonded or insured]. This leaves the person under taint or cloud of operating ‘in the public interest’ without the constitutionally and statutorily required bond, and therefore, in tacit violation of the constitutions and statutes under the scheme of ‘law’. “Law” applies first and foremost to government, its employees, officers, and agents.

In today’s rogue ‘doctrine of necessity’ ‘de facto’ environment, research has proven and documented that no person, performing as an ‘officer of the court’, being an alleged ‘judge’, being a ‘Bar attorney’ of the ABA or the Federal or State Bars, has a bona fide Constitutional Oath. The Bond that is supposed to be in existence sits atop the Oath. The Oath is not merely ‘incidental’ to the ‘office’ as has been ruled in some States by their corrupt court “officers”. The Oath is what imparts lawful and legal authority to the man/woman coming into ‘holding’ a ‘public office’ and becoming a ‘public official’.

A public servant having no proper Oath cannot have a proper Bond to encompass or include those risks associated with the ‘office’, ‘discharge of fiduciary duty’ of the office, and the various levels or elements of ‘law authority’ underlying the office. Hence, one may take an Oath to any office of the incorporated State, or the UNITED STATES, and not take a preceding Oath to the unincorporated de jure state or United States of America, and operate non/un constitutionally, which is all that has been going on for years, but which was not known or understood as being a material breach to the People of the State/state, causing or giving rise to material injuries in fact as a consequence of operating ‘ultra vires’, ie. outside the corporate charters and ‘trust indentures’ which create the office in the first place.

In the STATE OF NORTH CAROLINA, not one judge has taken the necessary Oaths of office, which include the organic ‘state’ de jure republic oath for “North Carolina”, and the subsequent and inferior or ‘lesser’ oath for the STATE OF NORTH CAROLINA. The latter ‘public entity’ has federal character, a Federal Employer Identification Number, a Federal Tax Identification Number, and is a federal ‘instrumentality’ of the CORPORATE ‘UNITED STATES’, and the DISTRICT OF COLUMBIA, under definition of 28 U.S.C. §3002(15), AND 26 U.S.C. §§7701 (a)(9) and (10). This documented fact pertains to every judge in every State court, but also applies to most every other ‘public official’ or ‘law enforcement officer’.

I cannot address what other State public pretenders and ‘District Attorneys’ or “Prosecutors” do when bringing a criminal complaint against any “natural Man or Woman”, which includes CORPORATIONS [YES, they are both the class of ‘person’ under statute ‘law’ definition], but in the STATE OF NORTH CAROLINA, when it is the bringer of the action, the People of the State are never brought in as ‘party to the action’. Only the CORPORATION/DEBTOR name is found on the Criminal Complaint or Information form. Only the corporate State is present in the courtroom, trying a case before a CORPORATE JUDGE. There exists a complete breach and break from the Constitution of North Carolina, because the People of the republic North Carolina and their ‘law’ are not present in the action nor party to it. They are not in the courtroom, nor are they acting through any ‘officer’ of the People, as ‘District Attorney’, which Office alleges to be a ‘servant of the People’. It is NOT. Event the DA does not have the mandatory and proper Constitutional Oath as condition precedent under NORTH CAROLINA GENERAL STATUTES, which clearly state at Chapter 11, Section 11, there shall be two Constitutional Oaths taken.

Absent performance according to that bonded STATUTE regarding bonded Oaths, leaves a clear and certain risk-liability issue for the Bond maker-issuer. Some bonding agent has bonded the Statutes and other writings of the law of the State. Some bond issuer has bonded State ‘employees’, ‘officers’, and ‘public officials’.

Some bond issuer has, therefore, “underwritten” risk on the basis of having full knowledge that there exist no Constitutional Oaths beneath the CORPORATE OATH. One cannot but presume that the bond issuer-maker has full disclosure; after all, ‘they’ have been registered within each State Department of Corporations, do business in all ‘States’ and DISTRICT OF COLUMBIA, and are presumed to know the “LAW”….including the “law of the land “, which under their “UNIFORM COMMERCIAL CODE” and all secondary ‘Civil’ or ‘Criminal’ Codes, would find itself to be in harmony with their legislative jurisdictional ‘statutes and implementing regulations’ at U.C.C. 1-308, 1-207, and 1-103, wherein All Rights are Reserved, and the U.C.C. states that it is harmonious with ‘all jurisdictions’, which would include the jurisdiction of the “law of the land”, ‘common law’, and the various common law Constitutions of the underlying several de jure republic ‘states’ of the American union, aka, United States of America.

Why would any bond underwriter knowingly underwrite these CORPORATE STATES, UNITED STATES, all of their ‘sub-corporations’, agents-agencies, instrumentalities, and their ‘law authority’ found in their various ‘writings’, private ‘laws’ etc., to operate a ‘public’ or ‘municipal’ construct as if it were ‘lawful government’, but knowing that it really is not? The underwriters of bonds, therefore, could not allege any defense against a massive intake of related claims by private inhabitants of any of the States or UNITED STATES who have been “compelled” under duress, extreme duress, or risk of extreme duress and prejudice of ‘seizure’, ‘confiscation’ ‘impound’, ‘occupation’, ‘detainment’, or injury or termination by any means of potentially lethal force?

Everyone who has ever been inside a State of North Carolina administrative or judicial ‘law’ proceeding, or been before any ‘clerk’ or ‘judge’ of same, or been prosecuted by any County District Attorney within said State/STATE, has been within a “brutum fulmen“:

Black’s Law Dictionary, 4t Edition: “brutum fulmen“: “An empty noise; an empty threat. A judgment void upon its face which is in legal effect no judgment at all, and by which no rights are divested, and from which none can be obtained; and neither binds nor bars anyone. Dollert v. Pratt-Hewitt Oil Corporation, Tex.Civ.Appl, 179 S.W.2d 346, 348. Also, see Corpus Juris Secundum, “Judgments” §§ 499, 512 546, 549.

The “Office of Sheriff” is a most important link between the People of any de jure republic ‘state’ and the Courts, and Offices of the State. However, it has been discovered that many Sheriffs do not, as Chief Law Enforcement Officer of any local ‘county’ or County, have a bona fide prior or ‘precedent’ Constitutional Oath to their respective republic state. Or, they may have taken a bona fide Constitutional Oath, and then disclaimed or disavowed it immediately henceforth by taking a CORPORATE Constitutional Oath.“A man cannot serve two masters”.

This same “axiomatic” principal applies to ‘officers’ of the United States as well. How can the newly ‘sworn’ Attorney General of the UNITED STATES, OFFICE OF ATTORNEY GENERAL [a federal corporation] take a Constitutional Oath to the United States, or UNITED STATES, and be held to such an Oath as ‘liable’ for his/her breach of fiduciary duty to the people of the United States of America, or to the franchise corporate trust estate ‘citizens of the UNITED STATES’, when the office ‘holder’ enjoins by contract to the ‘international purposes of INTERPOL’, under its Constitution [charter-contract] at Article 30 shortly after taking said Oath? Article 30 is quite explicit in meaning and intent. If one understands the “international purposes of INTERPOL” and all other ‘international agencies’ was and is to ‘establish a financial dictatorship within the United States/United States of America’ for the benefit of undisclosed third parties, under jurisdiction and authority of the IMF-U.N, then all of the lower level ‘breach of duty’ by lack of proper Bond and Oath issues would begin to make clear sense.

In short, all alleged ‘public servants’ are serving ‘public policy’ and ‘public administration’ of the ‘laws’ and enforcing those laws to protect the CORPORATION, to the disinterest and detriment of the People, whom have been ‘captured’, ‘searched’, ‘seized’, ‘boarded’ as with a ‘vessel’, and which People have been placed into ‘warehouse storeage’ as ‘human capital’ and ‘property’ of the de facto King or “Sovereign”, which/who has conquered and occupied the Office of the People, and subverted and subordinated it into an Office of Inquisition for YOU KNOW WHO!!

Lacking mandatory Oath, creates liability against the bond of the STATE, and every officer-agent-employee who has come to be ‘employed’ thereby.Breach of any underlying writing of the STATE, or State, or state, as an offer to contract in admiralty venue, is a certain “injury in fact” giving rise to a “material injustice” and resultant ‘liability’. There is no longer any question about ‘risk analysis’ or ‘damage assessment’. The only real issue is “HOW MUCH IS THE INJURY WORTH”? WHAT PENALTIES should be compelled above the mere “pecuniary” or monetary ‘relief’ to be sought? Treble damages? Punitive damages? Civil or Criminal or BOTH?

If Oaths and Bonds have not yet been ascertained for all relevant federal and State officers, agents, and employees, they should be compelled by FOIA request or subpoena duces tecum immediately so that the elements of contract and breach of duty by these ‘public servants’ under mandate of relevant Constitutions, statutes, regulations, etc., including the U.C.C. in Admiralty venue can be comprehensively determined; then, a resultant ‘cause of action’ constructed accordingly.

It is further axiomatic that: “Where a liability in equity arises due to injury by any party, and that party does not also provide a “remedy” for said liability, the injured party has the right and standing to create his own remedy”(Which would provide the secured right to seek Article III sec. 2 remedy for the deprivation of Natural Rights by way of a Title 18 USC sec 241 in the United States Court of Federal Claims.) This would n0t be a Title 42 USC proceeding for the U.S. citizen or person of diminished corporate status.

Persons without proper Oaths do not and cannot have proper Bonds OR satisfy the necessary requirements to “hold” a bona fide “Office”, by ‘commission’, “election”, or “appointment”. In short, an ‘Officer’ or “Office Holder” cannot but ‘occupy’ the office under false and misleading pretense, misrepresentation, and FRAUD, which strips the ‘individual’ of ‘law authority’ and ‘immunity’ under well-seasoned law of the land and sea.Brutum fulmen!!Bonds that are attached to such juristic ‘persons’ are subject to claim and lien, after “adequate assurance of due performance” has been found lacking pursuant to U.C.C. 2-619. A proper Oath and Bond are but two of the three primary “poles” of “Office” [Oath, Bond, Commission]. One cannot act upon being ‘duly appointed’ or ‘duly elected’ or ‘duly commissioned’ simply by INCORPORATION and CORPORATE ADMINISTRATIVE PROCESS.

NOTICE: CORPORATE ADMINISTRATIVE PROCESS aka “Administrative Procedures Act” lacks any bona fide Constitutional nexus and is without “lawful authority”, and thereby, has no nexus to the Constitutionally protected ‘Right’ of substantive “Due process” for the natural Man or Woman. Hence, any presumptive act or action taken against any natural Man or Woman by any oath sworn corporate ‘official’, ‘officer’, agent’ or ‘employee’ lacking such nexus is subject to CLAIM and/or COUNTER-CLAIM in a Chancery venue and proceeding. The claim, once perfected after ‘exhausting administrative remedy’ is brought against the Bond and the DUN & BRADSTREET rating of that CORPORATE PERSON will be affected as a consequence. The idea is not to seek an illegitimate claim for merely punitive or monetary purposes, but to seek claim on the basis of protest, dispute, redress, relief, and ‘remedy’ to restore you as to being made whole once again from the damage that has been maliciously exercised for the purpose to profit off your commercial value in total disregard and summary denial of the pre-existing accessible remedy provided out of necessity and thereby operation of law to avoid the circumstance of unjust enrichment of private and public parties, both natural and fictional.

Special Appearance In Propria Persona to challenge jurisdiction of agency Without Prejudice UCC 1-308.Agency of State is commercial Charter of Maritime jurisdiction;I hereby refute agencyterms of Uniform Commercial Code 3-104 “promise” and reject “unconditional”instruments as “unconscionable” at UCC 2-302.

The Constitution is not a defense in “satisfaction and accord” commercial venture unless “dishonor” of negotiable instrument is in dispute or fraudulently represented. If no contract exists, there cannot be an “action” to force acceptance of obligation if the Citizen remains In Propria Persona upon a license or summons.In Propria Persona upon an instrument would look like this; “Without Prejudice UCC 1-308,” written above your signature reverts the burden of proof and places terms upon agency. Individual terms are non-negotiable with agent/police power and must be accepted. The Citizen is then protected by the very statute meant to subject him to jurisdiction of commercial agency for same is non-assumpsit. Agency charter must follow U.C. Code or suffer the wrath of Their father.

Black’s Law 5th: In Propria Persona. “In ones own proper person. It was a former rule in pleading that pleas to the jurisdiction of the court must be plead in propria persona, because if pleaded by attorney they admit the jurisdiction, as an attorney is an officer of the court, and he is free to answer charges after “taking leave” of the accused, which admits the jurisdiction.”

In Propria Persona is “in your forehead” and guides your fleshy “right hand” to worship foreign instruments which causes your heart and Soul worry by subjecting your flesh “in-personam” to slavery. In-personam admits to the jurisdiction because you waived the wisdom of God and the Bill of Rights by accepting those of the 14th Amendment for Federal citizen “privilege and benefit.” Your attorney speaks for you by procedural process and knows nothing of God or The Bill of Rights.

Black’s Law 5th : Non-assumpsit. “The general issue in the action of assumpsit; being a plea by which the defendant avers that “he did not [knowingly] undertake or promise as alleged.”

When the Citizen is aware of a controversy regarding agency practice, they may elect to protect their In Propria Persona Citizenship status. Writing/signature upon a “required” “unconscionable” unit ofWithout Prejudice UCC 1-308 will render the unit non-assumpsit and reserves Rights upon the instrument.The non-assumpsit does not grant “satisfaction and accord” to agency. Thereby no expectation or “promise” at UCC 3-104.3.

Taxes do not buy anything; they only perpetuate inferior Article II Executive Departments to acquire more “persons” to collect them for Article I Congress. The People get raises on wages, rent, taxes, and insurance at the pleasure of the Federal Reserve. The wage earner is the most studied of mankind and risk loss in case of financial emergency. Insurance, interest rates, and medical expenses take the very little left over pocket money. Agency is very aware of this matrix but do not offer relief or even an ear. “Obligation of Contract” at Article I, Sec. 10, Cl.1, is the Law of the land, even if Admiralty has a claim. We Thee People must watch the wall of Truth, for when agency demands obedience, We The People must pray for proper knowledge.

Many purchase what they may because their money does not cause inflation. Citizens who toil daily and pay the IRS the price of a car payment or bicycle are the ones who cause inflation. We The People are in control of the buying if and when we may save enough to finance a vehicle, television or refrigerator. Agency is in charge of how much we purchase by using the tax to control this everyday life sequence.

Our seniors live on fixed income and their spare money is doled to the pharmaceutical manufacturing stockholders which operates against the “taxpayer” by using the same spending principal. The Federal Reserve knows exactly how much money those on Social Security have and the agency pays out according to the stress matrix of the senior “class.” The proof is; Canada sells U.S. drugs at far less than the price that Americans may purchase them in the U.S. There are two laws of this principle; Power and Greed and power and greed. No “benefit” because the “taxpayer” is tithing the wrong Master.

“Righteous” men had “entrusted” the Peoples” Lawful money to usury by devise long before the Federal Reserve Accounting Unit Devise was a reality. The “Great Depression” should have been the first sign of today’s resultant agency power. Congress controls the flow of F.R.A.U.D.s through their banks by raising and lowering insurance, interest and taxes. “District” circumstances may be manipulated by agency to take advantage of currency issues involved with as little as the Red Cross and as much as the Federal Emergency Management Agency. Mortgages, tuition, and taxes endanger the Citizen with threat of loss through foreclosure, confiscation of equipment, children or a ferret in the State of California. Households must “work” all hands in order to survive and pay interest and taxes. Farmers lose vast acreage for lack of Frauds and thereby agency bankers, bond holders and insurance companies prosper.

Many Patriots have fallen pray to the 13th Amendment with their lives, property and Spirit. Those who seek Truth must be made aware of their “worship” to this “procedural” Penumbra of “inferior” officers and agency courts. The individual must gain knowledge of agency and rid themselves of their inequity or be enslaved by adhesions far greater than now exist.

Black’s Law 5th: Penumbra Doctrine. “The implied powers of the federal government predicated on the Necessary and Proper Clause of the U.S. Const., Art. I, Sec.8 (18), permit one implied power to be engrafted on another implied power.” Kohl v. U.S., 91 U.S. 367, 23 L.Ed. 449. Kohl v. US, (1875)

This is a “stare decisis” or bench statute and does not apply to Article III Judicial Power or “natural born Citizens” of the respective states. Article I Legislative and Article II Executive are the implied powers which are engrafted at the “inferior” Fed/State forum court. A contract of corporate cause from Article I delict gives police power to agency via Article II Executive and puts the burden on the Citizen to prove he has not violated an agreement. Penumbra Doctrine does not include Article III, which is not an “implied” power.

Article I, Sec. 8 Cl. (1), “The Congress shall have the power to lay and collect Taxes, Duties, and Impost and Excises.”

None of these constitute wages or Right to employment and church without agency License. Neither is Congress authorized to delegate tax authority to any of the other “implied powers.” The Penumbra Doctrine allowed “implied powers” to be “engrafted.” Article II Executive to collect the tax with “implied” police power, but no delict to destroy diversity of Citizenship. Article I Legislative is the other “implied” power and together makes third party instruments “presumed” to obligate the state Citizen.to dispense Law Merchant procedureThird party units are voidable and both inferior powers must prove their jurisdiction to use the police power enabling clauses within their own system charter.

An Article I witness must verify accuracy and validity of its commercial “officer of the court” summons to the proper “persons.” Article II Executive must witness to the validity of proper instruments agency is “carrying into effect” and validate the unit’s application to the proper subject and class. Article III Judicial will not be present, only commercial entities are subject to procedural due process “justice.” All accusers within a commercial forum have a sworn duty as “officers of the court” to protect both Articles. All three Separation of Powers are required as witness and officials in a state Court. A state Court using Federal Rules are of the Penumbra Doctrine and may be made totally “dead in Law” by a Citizen who reserves his Rights to state Court.

The Department of Justice uses Federal Code of Civil Procedure and only has de jure power over subject corporations and resident persons “within the jurisdiction of the United States'” Territorial limits, “(not exceeding ten Miles square)” of the Washington “District.” Police power is presumed to apply to the “natural person” via summons, actions, and presentments which are contracts of Maritime nexus and require a “respondent” to prove innocence or “dishonor” of contractual “promise” will issue. The Citizen is presumed to know what has “made liable” there “in-personam,” and police power will “Miranda” your answers to the proper authorities for “scourging.”

ACTS; 22:25 And as they bound him with thongs, Paul said unto the centurion that stood by, “Is it lawful for you to scourge a man that is a Roman, and uncondemned?”

Paul of Tarsus said to the Centurion; I am a Child of God and no man may have sovereignty over me without permission. He would have given jurisdiction to be scourged if he would have been “tacit” in the presence of the agent or appealed for an attorney instead of a personal counsel from God. Paul was being threatened within the presumed jurisdiction of de facto Roman law or U.S. Article II. No conviction, only “public policy” of Article I was the “cry of the people,” even with Jesus. All procedure within its Territorial limits, which were “necessary and proper” for his presumed subject citizenship status, would have prevailed. Paul demurred by challenging the “enabling clause” of the “police power” to scourge Him. His Sovereignty as a “state Citizen” was “declared” and Paul was “entitled” to “privileges or immunities,” for His body was in Christ and bound thereto.

John 8:36 If the Son therefore shall make you free, ye shall be free indeed.

Jesus gave Paul marching orders to go unto the Gentiles and He would tell Paul what to say. Paul himself had engaged in the same killing, scourging and confiscation of property with license of State, as the centurion was about to render unto Him. He deserved it more than those who had preceded Him. Paul was a chosen vessel of Jesus Christ and never a more powerful statement at Law of Gentile was made prior neither to that day nor since. A Sovereign’s prayer to God in Jesus name is intercede and Remedy, even in these end times in the united States of America.

Many Nations have treated their Citizens the same way Paul was threatened, with Godless Government. In these United States, agency must contract prior to scourging, after all We Thee People must follow the “rule of Law.”

Jesus was present when Citizen Paul asked about the Law of the Free Born within an occupied Territorial State. There are those who cherish the same ever presents of God and seek knowledge to prevent their very slavery to man.Truth cannot Satan hear, and the dullness of Penumbras sphere hides the bright Star that comes as a thief to reap those who have falsely taught the Law of Man. Paul’s plea was from His Spiritual heart and In Propria Persona. Today the citizen who contracts or “tacitly” concedes to obligation are those scourged with Maritime jurisdiction.

Acts 22; 26-28 “when the centurion heard that, he went and told the chief captain, saying, Take heed what thou doest: for this man is a Roman. 27, Then the chief captain came, and said unto him, Tell me, art thou a Roman? He said, Yea. 28, And the chief captain answered, With a great sum obtained I this freedom. And Paul said, But I was free born.”

The agent was put on “Notice” (UCC 1-201.26 “Color of Law”) of Paul’s immunity from being held without victim, witness or warrant. The centurion must be very careful for this type of plea from a sovereign Citizen must be heard because even the Captain had not jurisdiction to proceed and could be sued by the victim of false persecution. There was no victim, nor “verified complaint,” based upon “probable cause” prior to having paid a fine or confined to hardship within Federal Rule 12 (b) commercial Tribunal. The captain was well aware of Title 18 statute and said to Paul he was also Roman which assented to ease Paul’s issue. The Captain said he purchased his “artificial” citizenship with approval of Congress and codified within the 14th Amendment. “BUT,” Paul said, “I was free born” and God’s Bill of Rights is intercede. Paul knew there were different Laws for “artificial” diversity citizenship and made sure the agent was aware that His was Sovereign. Not “subject” as that of the occupying “resident” captain who was an “officer of the court” within the jurisdiction of Caesar.

The Ten Commandments are forbidden in Federal/State court because a state Citizen has not been indicted by The People, but summoned before an inferior magistrate for gain. The Ten Commandments stand witness to the fact that very few of Gods Laws are broken and you are being forced into the synagogue of false teaching. Agency uses the Bible as a convenience to placate the victim witness of false testimony, when no crime has been committed. If not a crime against God, State cannot bring action. Paul had broken the law of man by teaching in Jesus name, but civil Law is forbidden from harming Gods chosen in this Nation. When Gods children testify “procedure” to placate the State; false witness is manifest.

Zech 5:4 “I will send out the curse,” says the LORD of hosts; “It shall enter the house of the thief And the house of the one who swears falsely by My name. It shall remain in the midst of his house And consume it, with its timber and stones.”

BANISHED

The beguiled Emperor conceived he was enthroned with the robe of concealment, he revealed himself by violating His seat of Covenant with God. The Ten Commandments are not the Law of his synagogue. His subjects hide the obvious banishment of reality and tempt God to marvel The People with blindness of elliptical Penumbra. A false witness may send an innocent to prison and the beguiled to Purgatory.

A policeman has only the power of arrest granted them by their Masters charter. The FBI, IRS, ATF, license bureaus, municipal tax, and police power are all heads from the same dragon, and only differ contractually. If the contract they presume to exist is “dishonored” for your failure to do or not to do a thing, the centurion will summon even the free man to Tribunal if he does not reserve his Rights as Paul had. The Bills Of Rights are “occupied” by elliptical words of art and Maritime Contract. A commercial action must be met with a commercial response for agency knows not the Rights of the individual who signs their “one status fits all” instruments “unconditionally.” We the People have lost the ability to avoid agency insistence upon our cooperation and are void of answers to their “mail box” policy and resultant court appearance within agency jurisdiction.

Simply responding to summons, presentments, depositions or refusing to enter a plea are all tacit admissions to the jurisdiction of the court. Try throwing a presentment in the trash and it will haunt you when the judge certifies payment is due for evasion.“Dishonor” will be verified if the Citizen does not respond with Rights reserved upon the negotiable summons/instrument/claim.

Black’s Law 5th: In-personam. “The action in personam is that by which we sue him who is under obligation to do something or give something.”

A W-4/summons/license is presumed to be voluntary, knowingly, willingly and intentionally signed by the Citizen. A negotiable instrument is Constitutional, no matter what Rights the Citizen is restricted from uttering, for same are waived and therefore frivolous. “Obligation of Contract” applies to all parties. Article III is bared from interfering due to the Separation of Powers and lack of nexus, no matter which class of Citizen has promised to “benefit.” Unconstitutional will not serve Remedy to an “unconditional” and voluntarily signed contract. Maritime Jurisdiction is not in the business of advising its “clients” how to protect their Bill of Rights upon any negotiable contract. Emphasis added!

The Citizen may remain In Propria Persona and have the same “benefit” of license if he desires. The W-4, summons, or license to practice medicine, pilot, or contract may be made non-assumpsit by the individual Citizen who is knowledgeable in the Law.

Black’s Law 5th: Federal Rules of Civil Procedure. “Body of procedural rules which govern all civil actions in U. S. District Courts and after which most of the states have modeled their own rules of procedure. These rules were promulgated by the U.S. Supreme Court in 1938 under power granted by Congress, and have since been frequently amended. Such rules also govern bankruptcy proceedings in the bankruptcy courts; and, Supplemental Rules, in addition to main body of rules, govern admiralty and maritime actions.”

Thereby the gold fringe which has federalized the state courthouse flag with “forum” Article I Legislated statutes of Congress and Article II Department of Justice Admiralty procedures.The activation clause for police power is by the hand of the contracted “subject,” which assents to agency idolatry. Congress contracts police power when “dishonor” of its instruments may be verified for “reasonable cause” to believe the tax, summons, or license has not been paid as promised by the “subject” Citizen.(Note: Waiver of a right may likewise be presumed, which would require a signature on a waiver form such as application for a “Driver” license. The state can’t contract at this level, as there is no authorized representative to sign the contract . . . so thereby, a unilateral waiver of right must suffice. At this point, is when it becomes necessary to rescind all signatures that may have waived a right. Reliance of a waived right(s) must be produced when demanded.

Article II D.O.J. lends its “implied power” Penumbra to execute procedures for collection, which violate the Separation of Powers Doctrine. If the Citizen does not have knowledge of the transgression, so be it, for the Citizen is presumed to know the Law and may not use any other documents to excuse ignorance.

“Subject” citizens are bound to follow procedural rules in civil actions, even if they do not speak the dialect or understand the law. When the Natural state Citizen remains In Propria Persona, Article III Judiciary requires “probable cause” or Citizen may not be “held” prior to “indictment” of The People per the 5th Amendment.A state Citizen is only as free as his knowledge of elliptical Citizenship devise within agency contract. A state Citizen is not required to follow Federal Rules of Civil Procedure for same are “without” jurisdiction. If voluntary assent is subscribed by non-disclosure or fraudulent representation, the contract is a nullity and “dead in Law” when the instrument is brought before the proper Tribunal as “unconscionable.”

Your state “modeled” their procedures which are “necessary and proper” to qualify for Fed funds to build the courthouse to try the state Citizen and “occupation” Territory per District statute. Federal Rules within a state court will not convince God of His Peoples Liberty.

The Masted Federal flag is warning to all; Maritime Jurisdictional Civil Law will dispense “forum” procedural “due process” to any who enter by contract or “tacit” compliance. The state only has the presumed power over the Citizen when Maritime jurisdiction has been empowered by “subject matter and in-persona jurisdiction” at Rule 12 (b) which delict false citizenship and obligates We The People as “subjects.”

Federal Rule 12 Defenses and Objections-(b) “_the following defenses may at the option of the pleader be made by motion: lack of jurisdiction over subject matter. (commercial “class”)
lack of jurisdiction over the person (contracted artificial subject v. natural born)a motion making any of these defenses shall be made before pleading.

(Administrative level) (h) (3) “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

Amended subdivision (h)(1)(A) eliminates the ambiguity and states that certain specified defenses which were available to a party when he made a preanswer motion, but which he omitted from the motion, are waived. The specified defenses are lack of jurisdiction over the person, improper venue, insufficiency of process, and insufficiency of service of process (see Rule 12(b)(2)–(5)). A party who by motion invites the court to pass upon a threshold defense should bring forward all the specified defenses he then has and thus allow the court to do a reasonably complete job. The waiver reinforces the policy of subdivision (g) forbidding successive motions.

By amended subdivision (h)(1)(B), the specified defenses, even if not waived by the operation of (A), are waived by the failure to raise them by a motion under Rule 12 or in the responsive pleading or any amendment thereof to which the party is entitled as a matter of course. The specified defenses are of such a character that they should not be delayed and brought up for the first time by means of an application to the court to amend the responsive pleading.

Since the language of the subdivisions is made clear, the party is put on fair notice of the effect of his actions and omissions and can guard himself against unintended waiver. It is to be noted that while the defenses specified in subdivision (h)(1) are subject to waiver as there provided, the more substantial defenses of failure to state a claim upon which relief can be granted, failure to join a party indispensable under Rule 19, and failure to state a legal defense to a claim (see Rule 12(b)(6), (7), (f)), as well as the defense of lack of jurisdiction over the subject matter(see Rule 12(b)(1)), are expressly preserved against waiver by amended subdivisions (h)(2) and (3).

In military terms, the prisoner must be remanded to a state court for Remedy. State court requires indictment by the People and Probable cause to issue a warrant. No “crime” has been committed within the jurisdiction of the People and the subject matter cannot “go forward” for no “verified complaint” exists and the court is entirely without “cause of action.”

“Without Prejudice” UCC 1-308 is much more than a “suggestion” when written above your signature. A reservation of Rights vitiates the W-4/license/summons by placing a non-assumpsit “condition” upon the now non-negotiable unit at UCC 3-104.2. The “promise” of UCC 3-104.3 is void ab initio and cannot “make liable” the “promise” under penalty of perjury at UCC 3-104.3. No performance is required for lack of subject matter jurisdiction as “lawful money of the United States” is not germane to “relief sought.”

Subject matter is as simple as understanding that there must be a contract, summons, or tacit “dishonor” of Maritime jurisdiction. Subject matter is the “nature of cause of actions and of relief sought.”

Black’s Law 5th: Cause. “Something that precedes and brings about; to effect as an agent; to bring into existence; to make to induce; to compel.”

Operating a vehicle on the street “requires” license of commercial operators. Your “unconditional” signature upon the unit gives “police power” to agency per agreement signed with full knowledge of its content. The subject is commercial and you are a card carrying member of Maritime Jurisdiction and “accepting benefit” of “trafficking.”

The Sheriff is the only Constitutional police officer of Article II Executive Branch. The state Citizen who commits a crime against the People must have “indictment” for “cause” to exist; the sheriff is the one who should pick you up. Municipalities and state police are “resident” 14th Amendment due process officers of the court and have very limited jurisdiction, whose subject matter is commercial gain. Vehicles are registered and held in trust by the “trafficker” and the summons is for “failure to perform legal obligation to do, or refrain from performance of, some act” involving State business.

The Citizen must rebut the “cause of action” a little different than Paul did. The Free born must deny all jurisdiction of agency to remain In Propria Persona. We do not accept the “benefit” of agency “due process” and aver to the God given Bill of Rights. By not accepting another “officer of the court” as attorney, agency is estoppel of procedural “due process” by adhesion, for no one has your “power of attorney” to “take leave” of your Bill of Rights.

A Christian Man must be aware of the Spiritual cost of waiving any Rights whatsoever. When asked if the charges are clear, a NO will demand the “cause of action.” The “proof of the matter stated” is contract or lack thereof and a statement of “Without Prejudice” UCC 1-308,I wish to remain silent” will estoppel agency and stay the matter at the administrative level. “Without Prejudice” is “notice” to agency that a “suggestion” has been made to deny jurisdiction per Rule 12 (b). “Color of law” statutes are very clear, and “the court shall dismiss the action.” The judge would violate his oath to act in a personal manner to harm anyone, and “made liable” and “obligated” to the Citizen for violation of Rights. The court officers 12 (6) “failure to state a claim upon which relief can be granted,” is fatal. The officers “service” of summons would also be flawed if a reservation of Rights were visible above the Citizens signature on W-4/license/summons, for no indictment, no “arrest” by surrogate is admissible.

The Supreme Court only “hears” what it may under guidelines set forth by the commercial agency bringing action. A knowledgeable state Citizen may not be actioned against by “persons” of Federal situs, unless they contract via “unconditional” negotiable units activated by agency executor at “promise.”Supreme Court settles “subject matter” issues between corporate “public policy” and subjects.

A reservation of Rights upon the W-4/license/summons, or ferret bill of sale estoppels the collection executor, for “no verification of negotiability exist”. None may be “made” for you as “single and one dependant.” Resident subject citizens are obligated by contract and an unauthorized pet may be seized by agency contraband confiscation procedure and “mail box policy” going to fear and intimidation.

The ferret in this case becomes property and probable cause and warrant is required to seize property.The Bill of Rights has already been decided as Law and therefore no reason to go to Court unless indicted by the People for a “crime.”Civil actions are not the laws within the jurisdiction of the Bill of Rights, for same may be amended at Congressional delict.A state Citizen of Article III may seek the “original jurisdiction” of the Supreme Court to protect religious Rights.A state Citizen who is in-personam/contracted to agency admits to the jurisdiction of “subject matter” issues and succumbs to Rule 12 (b).

Amendment I stands on its own as “Congress shall make no law respecting an establishing of religion.” The IRS however, will license Church tithes with IRS Code Section 501 c (3), giving de facto Federal permission to teach and contractual exempt status to accept tithes. Paul was freer than the church and God save us, it should be the other way around. The difference; Paul prayed for the knowledge to free Him, the church does not seek “prognostic counsel” nor does the “authoritive” Shepherd, ASK Luke 11:9.

“It is an elementary rule of pleading, that a plea to the jurisdiction is … a tacit admission that the court has a right to judge in the case, and is a waiver to all exceptions to the jurisdiction.” Girty v. Logan, 6 Bush Ky. 8.

Jesus made a “tacit” admission to Pilate when he responded to the question; “Art thou the King of the Jews.” “Thou sayest it” was not an admission, nor was it denial, but enough for Pilate to have “clean hands” for the “tacit” answer.The Magistrate was granted permission to heed “public Policy” and judgment was sealed and “legalized.” In today’s court Jesus would have been pled not guilty by the judge and at least would have had a real commercial trial prior to being flogged within Caesars” synagogues. Jesus would have been tried in-personam with “subject matter” contingent upon the prevailing agency procedures of the Tribunal. Procedures forbade those who would be King of anything to utter it even as “tacit” mumble. Simply stated; a subject may be tried by any agent who has jurisdiction granted him by the victim who has not declared Sovereign Rights. The Tribunal is immune from violating any Rights for same have been waived and issues of status are settled. Speak up, as Paul was instructed and reserve all your Rights with knowledge.

A valid “writing” at UCC 3-104.1, made “unconditional” at 3-104.2, will sustain the “promise” at 3-104.3 regardless of Constitutional arguments by the Patriot. This is jurisdiction of agency over the subject Citizen. Negotiable Instruments Law is UCC 3-104 and agency “must” follow the charter rules of its Master; Congress. Remedy is UCC 1-103.6 for “The code is ‘Complimentary’ to the common law which remains in force except where displaced by the code…”

A Church is not protecting its flock by “exempt” procedural contracts with the IRS. A Church who “must” collect Social Security numbers from an infant is not teaching posterity among the flock. Neither does “head of household” who deducts his infant as a tax benefit. God has allowed us to fail, but now awaits His obedient Children.

Man’s Law has adulterated Gods Holy places and “works” must be completed so the alter is made ready for Christ. Christian Men and Women are not required by God to license any Right. What then gives the Shepherd license to teach with Authority within a synagogue where the “marriage veil” is split for worship of agency; Apocrypha?

Addendum

Information, Presentment, or any “mail box policy” stands as truth if not rebutted. All Legislated Statutes should be treated as rebutable presumption and harmful to in-personam citizenship. Matters not what agency activity the individual is involved within, jurisdiction can be challenged at any time. “Without prejudice’ UCC 1-308, will stand as rebuttal, ‘answer’ and ‘discovery’ ‘prima facie’ on the Administrative record as notice to ‘abate.”Any of the above creates “estoppel of agency’, when the issue lacks ‘in-personam” jurisdiction. There will be “no cause where relief may be granted” to agency at the administrative level. Agency gets into much mischief if it attempts to raise a “dead in Law” issue, without assent.

“Remedy” is final within The Uniform Commercial Code. We the People were given “limited liability,” due to the usurpation of Constitutional ‘lawful money.”

Government hath not the power to repeal The Bill of Rights, even at statute Civil Liberties. Government activity only creates the allusion of sovereignty by our birth in a corporate State hospital per certificate and unconditional contract.

A Citizen makes himself subject to the 14th Amendment public policy by waiving their individual rights on the very forms they fill out on any given day. These forms serve as an Affidavit in personam, because the negotiable units are signed under penalty of perjury. A representative statement vitiates ‘promise’ to appear in any capacity at the presumptive agency tribunal. Unless rebutted, these contracts serve as “certified’ fact on the Administrative Record before the tribunal at bar, with your ‘unconditional’ ‘in-personam’ (Fed. Rule 12. b) ‘writing.” Your choice was “taxation without representation’ for you did not avoid consequences of an ‘unconscionable, ‘unconditional” and now negotiable unit. Your tithes are in the synagogues of a de facto Master and our Lord is not pleased.

The Article I procedural due process “inferior court’, district attorney and your lawyer will only follow the procedures set forth by the record. Your representative should be on the record as ‘without prejudice’. If you do not rebut, the 14th Amendment of Article I ‘inferior’ court will try facts and subject matter only with a ‘fair and impartial jury’, rather than ‘peers’ trying ‘fact and law’ of Article III.The district attorney will not be sworn by ‘Thee People’ at Article II Executive to follow the ‘Public’ Law at The Department of Administrative Services (DAS) State Procurement Office (SPO) developed OAR 125-246 through 249, DAS Public Contracting Rules, for state agencies subject to DAS authority (Agencies). The Model Rules do not apply to DAS or these Agencies. The A.G. will follow The State of Oregon at Federal ‘public policy’. Your attorney does not know “state” Citizen Rights, only federal ‘forum’ ‘persons’ procedure of the Tribunal per the Code of Military justice, which has been ‘adopted’ by most states. (Hence, the power of the Provost Marshals Office.)

Jurisdiction must be challenged at every issue to keep the controversy at the administrative level. The two required jurisdictions of ‘personam’ and ‘subject matter’ will not be served in the same court, unless it is Article III. A prayer or plea to equity must only reap equity. A commercial Tribunal must be dealt with commercially, the court must be bound to subject matter only and the Citizen must retain his ‘personam’. Your personam is ‘common Law’ at Bill of Rights, not equity, unless you failed to reserve your Rights.

The rule still stands, if you are challenged by equity, you must answer with equity.“Without prejudice” UCC1-308 is Remedy because the ‘representation’ in-personam reveals the ‘discovery’ that no Rights were thereby waived at Bill of Rights.UCC1-103.6 is equalizer via equity and notice, now the code must be read in harmony with the common Law at the Or. Code. This section of the Uniform Commercial Code is the only place the Constitution and equity may be joined without ‘contempt’ of the tribunal.

A court which presumes you will appear, cannot issue a criminal warrant for ‘failure to appear’ at corporate bar. ‘Without prejudice’, written above your ‘writing’ at UCC 3.104.1, destroys its “unconditional” requirement at UCC 3-104.2 and ‘promise’ is forfeit at UCC 3-104.3. It serves as a bar to all others at ‘Obligation of Contract’ that a ‘condition’ is prima facie upon the unit and it is utterly void at Law.

It is ‘proclivity of your adversary not to answer’, so do not expect agency to give you any information on the above material. Stand your ground as intended when facing an adversary. Agency may play ‘ignorant’ and use ‘mail box policy’, answer everything. Force agency to write down their issues and mail them to you. Letters are the best facts and each failure to answer on the part of agency is further ‘estoppel.’ Phone calls are ‘parol’ and courts will offer you a ‘parol’ chance to explain yourself for ‘dishonoring’ agency presentment by ‘creditable’ agency phone call.

Excellent Generalship knowledge will come to bear upon those who proceed ‘in want of jurisdiction.’ You must know what to do or fail for the lack of so little effort at your Political Spirit. Luke 11:9 “entitles” We Thee People to Ask and then Seek Knowledge of which door to knock upon, for it does not open to uncertainty.

The word of Truth is binding only on those who have knowledge of it. Perhaps you have read too far?The Lamb is in the field, and the Choice of Him is yours. Each Citizen of us must “Ask’ why he fears and ‘Seek’ knowledge of which door to ‘Knock” and thereby abate worry. Greed for Power has coveted darkness to the faintest light of Sovereignty with God. Man must walk “Thee Way” or stumble over Thee Robe of The Fisherman and suffer the yoke of idolatry, and iniquity of Roman Lex. Truth of Church and Grace await compliance for false Teachers may not Covenant with Thee People, and The Robe is yet bartered to Civil Roman Lex.

(Blog Master’s Note: This is a Letter Rogatory, it either testifies to, or asks for testimony, from a foreign court. With both state and federal being corporate, they are foreign to our de jure government. An early example is Nelson v. United States, 1 Pet. 236, Nelson was asking for testimony from Cuba. Here is a recent case 42 F.3d 308 dealing with a Letter Rogatory)

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Name_________________________[ ] address with numbers in bracketscity, state with zip in brackets [ ]

Dated:

Certified mail #

To: Honorable (Judge)addresscity, state, zip

Re: Presentment in the nature of a“Letter Rogatory.”

This writing is submitted in the nature of a letter rogatory from my court circa 1937, to your court and relates to an apparent and ongoing disparagement of the supposedly unfettered right to remedy and thereby assertion of my private reservation of natural rights at this juncture in time, and as being demonstrably critical to my personal safety and economic well being and addresses the ultimate and individual survival of this native born American. I write this letter as a Man born upon the dry land of this nation and I firmly believe this act of my live birth as being wholly natural and not having arisen as a privilege granted by “this state” of the forum and permits me to speak to the subject in question, namely what I suspect and believe to be the procedural portal and remedy for myself in the flesh to access my inherent and thereby secured natural rights pursuant to the reliance upon the aforesaid reservation of rights without prejudice as provided at UCC 1-308. I may at some point in the future require your certification of any statute as being constitutionally valid and which may be relied on to infringe the reservation of my natural rights.

I ask that you read this letter and accompanying documents carefully and that you not dismiss out of hand, my understanding as related to the manner that many of the administrative entities and their respective operatives who are employed by “this state”, appear to cast a blind eye on my assertion to open, notoriously and unconditionally reserve my private and thereby natural rights, without prejudice as noted at Oregon Statutes – Chapter 174 – Construction of Statutes; General Definitions – Section 174.030 – Construction favoring natural right to prevail. Where a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former [natural right] is to prevail (as against the summary infringement of rights employing fraud in the inducement by the “law merchant.”)

WHEREAS; “Merchants have no country. The mere spot they stand on does not constitute so strong an attachment as that from which they draw their gains.”

-Thomas Jefferson to Horatio Gates Spafford, 17 Mar. 1817, cited in Papers 14:221 (1) “Unless you become more watchful in your States and check this spirit of monopoly and thirst for exclusive privileges you will in the end find that the most important powers of Government have been given or bartered away, and the control of your dearest interests have been passed into the hands of these”

President Andrew Jackson, Farewell Address, March 4, 1837 (2) “I think we are in a position, after the experience of the last 20 years, to state two things: in the first place, that a corporation may well be too large to be the most efficient instrument of production and of distribution, and, in the second place, whether it has exceeded the point of greatest economic efficiency or not, it may be too large to be tolerated among the people who desire to be free.”

-Supreme Court Justice Louis Brandeis, testimony before the Committee on Interstate Commerce, 1911. (102) “Behind the visible government there is an invisible government upon the throne that owes the people no loyalty and recognizes no responsibility. To destroy this invisible government, to undo the ungodly union between corrupt business and corrupt politics is the task of a statesman.”

-Teddy Roosevelt, the 26th President of the United States, during his 1912 election campaign (104) “I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country. . . .corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed.”

-U.S. President Abraham Lincoln, Nov. 21, 1864, from a letter to Col. William F. Elkins (3)Due to the above referenced circumstance causing the country to move to rapid deterioration, I have made a personal determination to traverse to my God given natural right and proceed out of the “shadow” of the fictional creations crafted by “this state” and will not animate such entities in a subservient nature.

WHEREAS, it would appear the majority of the operatives of “this state” be it out of ignorance, indifference or extreme prejudice completely refuse to acknowledge such assertion of the natural right as clearly acknowledged within the Oregon Constitution and the Oregon Revised Statutes. Unfortunately, the problem seems to go to an insensitive attitude or perception among many government employees, agents and those exercising the administrative police powers at article I and article II administrative tribunals while relying wholly upon the Administrative Procedures Act for their authority and presume a waiver of my substantive Due Process rights. Said employees of the state of the forum see this circumstance as an “us” vs. “them” contest and perceiving the people as being the more or less ignorant masses who are presumed to be statutorily captured and thereby, the involuntary source of funding for the public employee’s regular paychecks, benefits and assorted perks.Said people dare not threaten the operative’s privileged well being by reserving the right to access their natural right, which could go to the economic detriment of “this state” and its privileged public [servants].

Another prime example lies in “Policing for Profit” to wit: “Policing for Profit” Report Documents the Nationwide Abuse of Civil Forfeiture

Each State & Feds Graded on Forfeiture Laws & Practice; Only Three States Earn Grades of B or Better. It’s called policing for profit and it’s happening all across America.

Police and prosecutors’ offices seize private property–often without ever charging the owners with a crime, much less convicting them of one–then keep or sell what they’ve taken and use the profits to fund their budgets.

And considering law enforcement officials in most states don’t report the value of what they collect or how that bounty is spent, the issue raises serious questions about both government transparency and accountability.

Under state and federal civil asset forfeiture laws, law enforcement agencies can seize and keep property suspected of involvement in criminal activity.

Unlike criminal asset forfeiture, however, with civil forfeiture, a property owner need not be found guilty of a crime–or even charged–to permanently lose her cash, car, home or other property.

According to the Institute for Justice–whose fight against eminent domain abuse raised that issue to national prominence—civil asset forfeiture is one of the worst abuses of property rights in our nation today. The Institute for Justice today released a first-of-its-kind national study on civil forfeiture abuse. The report–Policing for Profit: The Abuse of Civil Asset Forfeiture (http://www.ij.org/PolicingForProfitPDF) is the most comprehensive national study to examine the use and abuse of civil asset forfeiture and the first study to grade the civil forfeiture laws of all 50 states and the federal government. The report finds, not surprisingly, that by giving law enforcement a direct financial incentive in pursuing forfeitures and stacking the legal deck against property owners, most state and federal laws encourage policing for profit rather than seeking the neutral administration of justice. (For additional resources on this report, visit: http://www.ij.org/PolicingForProfit. For a brief video on this topic, visit: http://www.youtube.com/watch?v=_hytkAaoF2k&feature=player_embedded.)

Government at every level is in on the take and the problem is growing. For example, in 2008, for the first time in its history, the Department of Justice’s forfeiture fund topped $1 billion in assets taken from property owners and now available to law enforcement. State data reveal that state and local law enforcement also use forfeiture extensively:

From 2001 to 2002, currency forfeitures alone in just nine states totaled more than $70 million. Considering this measure excludes cars and other forfeited property as well as forfeiture estimates from many states for which data were unreliable or that did not make data available for those years, this already-large figure represents just the tip of the forfeiture iceberg.

Laws Stacked Against Property Owners

The report demonstrates that legal procedures make civil forfeiture relatively easy for most governments and difficult for many property owners to fight. The vast majority of states and the federal government use a standard of proof–what is needed to successfully prosecute a forfeiture action–lower than the “beyond a reasonable doubt” standard required to prove an individual was guilty of the criminal activity that supposedly justified the taking of his property. Given that situation, it is not surprising that upwards of 80 percent of forfeitures at the federal level occur absent a prosecution. Likewise, many jurisdictions provide an “innocent owner” defense that allows owners to get their property back if they had no idea it was involved in a crime. But in most places, owners bear the burden of establishing their innocence.

“Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head,” said Institute for Justice Senior Attorney Scott Bullock, a co-author of the report. “With civil forfeiture, your property is guilty until you prove it innocent.”

Grading Forfeiture Laws and How Government Evades Them

In Policing for Profit, IJ grades each state on its forfeiture laws and other measures of abuse. Only three states (Maine, North Dakota and Vermont) earned a grade of B or better. Maine earned the highest grade, an A-, largely because all forfeiture revenues go to the state’s general fund, not directly into law enforcement coffers. On the other end of the spectrum, states like Texas and Georgia both earned a D- because their laws make forfeiture easy and profitable for law enforcement–with 90 and 100 percent of proceeds awarded to the agencies that seized the property.

Under these arrangements, state and local officials can hand over forfeiture prosecutions to the federal government and then receive up to 80 percent of the proceeds–even when state law bans or limits the profit incentive. Equitable sharing payments to states have nearly doubled from 2000 to 2008, from a little more than $200 million to $400 million.

“Our results show that law enforcement is acting in pursuit of profit: Agencies are using federal law as a loophole to circumvent more restrictive and less profitable state laws,” said Marian Williams, Ph.D., assistant professor of government and justice studies at Appalachian State University and a co-author of the report. “This finding is consistent with a growing body of scholarly research, news reports and even testimonials from law enforcement officers about civil asset forfeiture practices.”

Six states earned an F and 29 states receive a D for their laws alone. Lax federal laws earn the federal government a law grade of D-. Eight states receive a B or higher for their laws: Indiana, Maine, Maryland, Missouri, North Carolina, North Dakota, Ohio and Vermont. But extensive use of equitable sharing pulls down the final grades of five of those states: Indiana (C+), Maryland (C+), Missouri (C+), North Carolina (C+) and Ohio (C-). The lowest-graded states overall, combining both poor laws and aggressive use of equitable sharing, are Georgia, Michigan, Texas, Virginia and West Virginia. Each received overall grades of D-.

Policing for Profit was co-authored by IJ’s Scott Bullock and criminal justice researchers Drs. Marian Williams and Jefferson Holcomb of Appalachian State University and Tomislav Kovandzic of the University of Texas at Dallas. The university professors examined equitable sharing data and found clear evidence that law enforcement is acting in pursuit of profit. When state laws make forfeiture harder and less profitable, state and local law enforcement engages in more equitable sharing to circumvent the state laws. New York, for example, has an average grade for its forfeiture laws as rated by IJ–but is one of the most aggressive states for equitable sharing, earning it a D.

Bullock said, “If you want reforms that will end policing for profit, you must recognize two realities. First, states should not incentivize forfeiture through laws that make it easy and profitable, as most do. But second, even when those laws are tightened, the research findings are clear: Police are using equitable sharing through the federal government as a loophole to pursue forfeitures that under state law wouldn’t be allowed or wouldn’t provide as much return. The only way, therefore, to end this growing and unaccountable use of government power is through real reforms that truly remove the profit motive and protect innocent citizens.”

The Institute for Justice recommends that, first, law enforcement should be required to convict people before taking their property. Law enforcement agencies could still prosecute criminals and forfeit their ill-gotten possessions–but the rights of innocent property owners would be protected. Second, police and prosecutors shouldn’t be paid on commission. To end the perverse profit incentive, forfeiture revenue must be placed in a neutral fund, like a state’s general fund. It should also be tracked and reported so law enforcement is held publicly accountable. Finally, equitable sharing must be abolished to ensure that when states act to limit forfeiture abuse, law enforcement cannot evade the new rules and continue pocketing forfeiture money.

“Police and prosecutors should not be profiting at the expense of privateproperty rights, and the Institute for Justice will use every tool at our disposal to expose this injustice and bring it to an end,” said IJ President and General Counsel Chip Mellor.

As a Belligerant Claiment proceeding in accordance with my Natural right and standing as a Man upon the dry land, I make the following Declaration for cause:

AFFIDAVIT OF TRUTH AND UNDERSTANDING

It is well settled the Constitution is not a defense in “satisfaction and accord” commercial venture unless “dishonor” of negotiable instrument is in dispute or fraudulently represented. If no contract or related controversy exists, there cannot be an “action” to force acceptance of obligation if the Citizen remains In Propria Persona upon a license or summons.

In Propria Persona however, will cause to be added upon all presented instruments, signed by a transferror agent or not, will evidence the following; “With Reservation of all Rights, Remedies and applicable Treaties Without Prejudice UCC 1-308,” and will be written above my blue wet ink signature, and thereby, reverts the burden of proof and places the implied terms upon the agency or its agent and thereby accessing Article III rights as so reserved. Individual terms are non-negotiable with agent/police power and must be accepted. Whereas, Article III protection is afforded by the very statute intended to subject myself to the jurisdiction of commercial agency for said agency is non-assumpsit. The agency charter must follow Uniform Commercial Code to the letter.

Black’s Law 5th : Non-assumpsit. “The general issue in the action of assumpsit; as being a plea by which the defendant avers that “he did not [knowingly] undertake or promise as [agency] alleged.”

When this Man becomes aware of any potential controversy regarding agency practice, I will protect my In Propria Persona American Citizenship status by writing/signature as “required” upon all “unconscionable” units evidencing, Without Prejudice UCC 1-308, which will render the unit non-assumpsit and reserves Rights upon the said instrument. The non-assumpsit does not grant “satisfaction and accord” to the agency. Thereby no expectation or “promise” is presumed at UCC 3-104.3.

Regarding the Penumbra Doctrine as defined in Black’s Law 5th. “The implied powers of the federal government predicated on the Necessary and Proper Clause of the U.S. Const., Art. I, Sec.8 (18), permit one implied power to be engrafted on another implied power.”Kohl v. U.S., 91 U.S. 367 (1875) 23 L.Ed. 449.

This is a “stare decisis” or bench statute and does not apply to Article III Judicial Power or myself as a “natural born American Citizen” of the respective land. Article I Legislative and Article II Executive are the implied powers which are engrafted at the “inferior” Fed/State of the forum court. A contract of corporate cause from Article I delict gives police power to agency via Article II Executive and puts the burden on the Citizen to prove (a negative) that he has not violated some form of agreement. The Penumbra Doctrine however, does not include Article III, which is not an “implied” power.

Article I, Sec. 8 Cl. (1), “The Congress shall have the power to lay and collect Taxes, Duties, and Impost and Excises.”

None of these constitute wages or Right to employment and thereby agency License. Neither is Congress authorized to delegate tax authority to any of the other “implied powers.” The Penumbra Doctrine allowed mere “implied powers” to be “engrafted.” Article II Executive to collect the tax with “implied” police power, but no delict to destroy diversity of Citizenship. Article I Legislative is the other “implied” power and together causes third party instruments to be merely “presumed” to obligate the state Citizen.

These instruments fail to fully disclose their misrepresentation, omission, concealment, secrecy, and are of collusion, fraud in the inducement and conspiracy. The flag of Article II Admiralty is proof of third party Department of Justice Executive, using Article I Legislative statute to dispense Law Merchant procedure to sell the for profit private copyright statute. Third party units are voidable and both inferior powers and are held to prove their jurisdiction to use the police power enabling clauses within their own system charter. See The Clearfield Doctrine.

An Article I witness must verify accuracy and validity of its commercial “officer of the court” summons to the proper “parties.” Article II Executive must witness to the validity of proper instruments the agency is “carrying into effect” and validate the unit’s application to the proper subject and class subject thereto. Article III Judicial will not be present, only commercial entities are subject to “procedural” due process i.e. diminished “justice.”

All accusers within a commercial forum have a sworn duty as “officers of the court” to protect both Articles II and III. All three Separation of Powers are required as witness and officials in a state Court.

A state Court using Federal Rules (FRCP) are of the Penumbra Doctrine and may be made totally “dead in Law” by a Citizen who reserves his Article III Rights to state Court pursuant to UCC 1-308.

The agent has been put on “Notice” (UCC 1-201.26 “Color of Law”) being immune from being held without victim, witness or warrant. The summary agent (statute merchant) must be ameniable to this type of plea from a sovereign American Citizen who must be heard under Article III “due process” and related mandated right of unlimited discovery prior to hearing, because even the agent had no jurisdiction to proceed and could be sued by the victim for false persecution, kidnapping and possible Robbery Ashore.

As there is no victim, nor “verified complaint,” based upon “probable cause” prior to having paid a fine been subjected to Levy or confined to hardship within Federal Rule 12 (b) of the commercial Tribunal.

The police powers have only the power of arrest granted them by their Masters charter. The FBI, IRS, ATF, license bureaus, municipal tax, and police power are all heads from the same dragon, and only differ contractually. If the contract they presume to exist or enforce is “dishonored” for my failure to specifically perform. The Bill Of Rights are “occupied” by elliptical words of art and Maritime Contract. A commercial action must be met with a commercial response from the agency who by their nature cannot and will not acknowledge the secured Article III due process Rights of the individual who signs their “one status fits all” instruments “unconditionally.”

Article II D.O.J. lends its “implied power” under the Penumbra Doctrine to execute procedures for collection, which violate the Separation of Powers Doctrine. Should the Citizen not possess knowledge of the transgression, so be it, for the Citizen is presumed to know the Law and may not use any other documents to excuse ignorance.

“Subject”/ignorant citizens are bound to follow procedural rules in civil actions, even if they do not speak the dialect or understand the law. When the Natural state Citizen remains In Propria Persona, Article III Judiciary requires “probable cause” to issue or Citizen may not be “held” prior to “indictment” of The People per the 5th Amendment. A state Citizen is only as free as his knowledge of the elliptical Citizenship devise within agency contract. A state Citizen is not required to follow Federal Rules of Civil Procedure for these Citizens are “without” the said jurisdiction. If voluntary assent is subscribed by non-disclosure or fraudulent representation/inducement, the contract is a nullity and “dead in Law” when the instrument is brought before the proper Tribunal as “unconscionable.”

Whereas, The Masted Federal flag is warning to all; Maritime Jurisdictional Civil Law will dispense forum “procedural “due process to any who enter by contract or “tacit” compliance.

The state only has the presumed power over the Citizen when Maritime jurisdiction has been empowered by “subject matter and in-persona jurisdiction” as provided at Rule 12 (b) which delict false citizenship and obligates the party as the [ignorant] “subject” by fraudulent design.

Federal Rule 12 Defenses and Objections-(b) “_the following defenses may at the option of the pleader be made by motion: lack of jurisdiction over subject matter. (commercial “class”) lack of jurisdiction over the person (contracted artificial subject v. natural born) a motion making any of these defenses shall be made before pleading.

(Administrative level) (h) (3) “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”

WHEREAS; “Without Prejudice” UCC 1-308 is by its nature much more than a mere “suggestion” or “request” when written above your signature. A reservation of Rights activates a dormant right that vitiates the license/summons etc. by placing a non-assumpsit “condition” upon the now non-negotiable unit at UCC 3-104.2. The “promise” of UCC 3-104.3 is void ab initio and cannot “make liable” the “promise” under penalty of perjury at UCC 3-104.3. No performance is required for lack of subject matter jurisdiction as “lawful money of the United States” is not germane to “relief sought.”

The “proof of the matter stated” is contract or lack thereof and a statement of “Without Prejudice” UCC 1-308, gives notice that I elect to remain silent” and thereby, will estoppel the agency and stay the matter at the administrative level. “Without Prejudice” is “notice” to agency that a “suggestion” has been made to deny jurisdiction per Rule 12 (b). “Color of law” statutes are very clear and usually devoid of any valid implementing regulation, and thereby, “the court shall dismiss the action.” The judge would violate his oath to act in a personal manner to harm anyone, and “made liable” and “obligated” to the Citizen for violation of said Citizens secured Rights. The court officers 12 (6) “failure to state a claim upon which relief can be granted,” is fatal. The officers/agent “service” of summons would also be flawed if a reservation of Rights were visible above the Citizens signature on license/summons etc., for no indictment, no “arrest” by surrogate is admissible.

The Supreme Court only “hears” what it may under guidelines set forth by the commercial agency bringing action. A knowledgeable state/American Citizen may not be actioned against by “persons” of Federal situs, unless they knowingly and with full knowledge regarding the contract via “unconditional” negotiable units activated by agency executor at “promise.”

The reservation of Rights upon the license/summons, or bill of sale estoppels the collection executor, for “no verification of negotiability exist”. None may be “made” for you as “single and one dependant.”

The Bill of Rights has already been decided as Law and therefore no reason to go to Court unless indicted for probable cause by the People for a “capital crime.” Civil actions are not the laws within the jurisdiction of the Bill of Rights, for same may be amended at Congressional delict. A state Citizen of Article III may seek the “original jurisdiction”of the Supreme Court to certify the statute in question as constitutional.

Whereas; information, presentment, or any “mail box policy intimidation” stands as truth if not rebutted. All Legislated Statutes will be treated as a rebutable presumption and harmful to my in-personam Citizen. Matters that are not what the agency activity is involved with, jurisdiction can be challenged at any time. “Without prejudice’ UCC 1-308, will stand as rebuttal, ‘answer’ and ‘discovery’ ‘prima facie’ on the Administrative record as notice to ‘abate.”

Agency gets into much difficulty via fraud should it attempt to raise a “dead in Law” issue, without assent.

“Remedy” is final within The Uniform Commercial Code. We the People have been given “limited liability”out of necessity due to the usurpation of Constitutional ‘lawful money.”

Government hath not the power to repeal The Bill of Rights, even at statute Civil Liberties. Government activity only creates the illusion of sovereignty by our birth in a corporate State hospital per certificate and unconditional contract upon an ignorant minor.

Jurisdiction will be challenged at every issue and will maintain the controversy at the administrative level. The two required jurisdictions of ‘personam’ and ‘subject matter’ will not be served in the same court, unless the court is Article III. There will be no plea to equity, as equity must only reap equity. A commercial Tribunal must be dealt with commercially, the court will be bound to subject matter only and this American Citizen will retain his ‘personam’. My personam is the ‘common Law’ at the Bill of Rights, and pleads no equity.

The rule still stands, when challenged by equity, you must answer with equity. Estopping the matter of equity is pursuant to reservation of all rights “Without prejudice” UCC1-308 and is the Remedy because the ‘representation’ in-personam reveals the ‘discovery’ that no Rights were thereby waived at the Bill of Rights. UCC1-103.6 is equalizer via equity and notice, now the code must be read in harmony with the common Law at the Or. Code.

This section of the Uniform Commercial Code is the only place the Constitution and equity may be joined without ‘contempt’ of the tribunal.

A court which presumes that I will appear [in the airspace above], cannot issue a criminal warrant for ‘failure to appear’ at corporate bar. ‘Without prejudice’, written above my ‘writing/L.S.’ at UCC 3.104.1, destroys the “unconditional” requirement at UCC 3-104.2 and ‘promise’ is forfeit at UCC 3-104.3. Reservation serves as a bar to all others at ‘Obligation of Contract’ that a ‘condition’ is prima facie and wanting upon the unit and it is utterly void at Law.

It is ‘proclivity of the adversary not to answer’, so I would not expect the agency to voluntarily offer any information upon the herein referenced understanding of the above unconditional right to remedy. Generally the agency can be expected to play ‘ignorant’ and revert to a predictable ‘mail box policy’, and I will answer everything with reservation at UCC 1-308 . The agency must offer their issues in writing under penalty of perjury, sign and mail them to me. Failure of the agency to answer timely on the part of agency is tacit ‘estoppel.’ As for phone calls they are ‘parol’ and courts will always grant a ‘parol’ opportunity to offer an explanation for ‘dishonoring’ agency presentment(s) by what must be a ‘creditable’ agency phone call.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct; and at all times asserting my reservation of all rights, remedies, and applicable treaties without prejudice UCC 1-308. I am the Authorized Representative and source of any and all Credit to be monetized as a result of this communication and transaction.

Sincerely,

________________________________________ SEAL

Below is the notice going to cause strictly adherence to my Article III “Due Process” in accordance to the Bill of Rights regarding any presumptive circumstance of Arrest, Warrant and Restraint and must be followed to the letter for cause and pursuant to the reservation of rights, remedies and applicable treaties without prejudice UCC 1- 308. All other rights are equally reserved and may at some point, require the Chief Justice of the Oregon Supreme Court to certify the constitutionality of any statute that may be relied upon by any operative of “this state” to summarily infringe such rights.

Arrest is presumed to be False under Article III Due Process

MEMORANDUM OF POINTS AND AUTHORITIES

1. Arrest is presumed to be false; officer has the burden of proof

The only thing the plaintiff needs to plead and to prove if alleging false arrest, is either (1) that the defendant made an arrest or imprisonment, or (2) that the defendant affirmatively instigated, encouraged, incited, or caused the arrest or imprisonment.Burlington v. Josephson, 153 Fed.2d 372,276 (1946).

“When the plaintiff has shown that he was arrested, imprisoned or restrained of his liberty by the defendant, “the law presumes it to be unlawful.” People v. McGrew, 20 Pac. 92 (1888); Knight v. Baker, 133 P.544(1926).

“The burden is upon the defendant to show that the arrest was by authority of law.“ McAleer v. Good, 65 Atl. 934, 935 (1907); Mackie v.Ambassador, 11 P.2d 6 (1932).

“Any arrest made without a warrant, if challenged by the defendant, is presumptively invalid…the burden is upon the state” to justify it as authorized by statute, and as not violative of constitutional provisions. State v. Mastrian, 171 N.W.2d 695 (1969); Butler v. State, 212 So.2d577 (Miss 1968)

“As in the case of illegal arrests, the officer … must keep within the law at his peril.” Thiede v. Scandia, 217 Minn. 231, 14 N.W.2d 400 (1944).

2. Must show warrant upon request

“He must show it to the accused, if requested to do so.” Smith v. State,208 S.2d 747 (Miss., 1968).

“If demanded, he must produce the warrant and read it to the accused, that he may know by what authority and for what cause he is deprived of his liberty.” State v. Shaw, 89 S.E. 322 (1916).

“An accused person, if he demands it, is entitled to have the warrant for his arrest shown to him at the time of arrest.” 42 L.R.A. 682, 51 L.R.A.211, Crosswhite v. Barnes, 124 S.E. 242, 245 (1924).

“A special deputy is bound to show his warrant if requested to do so, and if he omit, the party against whom the warrant issues may resist an arrest, and the warrant under such circumstances is no protection against an action for an assault, battery and false imprisonment.” Frost v. Thomas, 24 Wendell’s Rep. (N.Y.) 418, 419 (1840).

“It is doubtless the duty of an officer who executes a warrant of arrest to state the nature and substance of the process which gives him the authority he professes to exercise, and, if it is demanded, to exhibit his warrant, that the party arrested may have no excuse for resistance.“ Shovlon v. Com., 106 Pa. 369, 5 Am. Crim. Rep. 41 (1884)

“It was the duty of an officer who attempts to make an arrest to exhibit the warrant if he has one.” Jones v. State, 114 Ga. 79, 39 S.E. 861(1901)

3. Warrant must be valid

A constable justifying an imprisonment under a warrant must show that the warrant on its face is legal, and that the magistrate had jurisdiction of the subject-matter. 51 L.R.A. 197, Poulk v. Slocum, 3 Blackfords (Ind). 421. (Meaning, you should also demand a copy of the affidavit giving the judge probable cause to issue the warrant. All warrants must issue upon submission of an affidavit of probable cause.)

“A warrant is regarded as insufficient and thus void if, on its face, it fails to state facts sufficient to constitute a crime.” Wharton’s Crim. Proc., 12th Ed., vol. 1, p. 152 (1974).

“An illegal arrest is an assault and battery. The person so attempted to be restrained of his liberty has the same right, and only the same right, to use force in defending himself as he would have in repelling any other assault and battery.” State v. Robinson, 72 Atl.2d 262 (1950).

“An arrest without warrant is a trespass, an unlawful assault upon the person … where one is about to be unlawfully deprived of his liberty he may resist the aggressions of the offender, whether of a private citizen or a public officer, to the extent of taking the life of the assailant, if that be necessary to preserve his own life, or prevent infliction upon him of some great bodily harm.” State v. Gum, 69 S.E. 464 (1910).

“Every person has the right to resist an unlawful arrest … and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.” Columbus v. Holmes, 152 N.E.2d 306 (1958).

6. No handcuffs (sorry, OSHA)

“But a constable cannot justify handcuffing a prisoner unless he has attempted to escape, or unless it be necessary in order to prevent his doing so.”51 L.R.A. 216.

For a warrant to issue: the warrant must be signed with a wet blue ink signature by a sitting judge who must have taken a constitutional oath of office on file and proof of a bond to indemnify the party to be taken into custody;must specifically name the crime committed;

must contain an affidavit executed (under oath) by the accuser, stating FIRST HAND facts constituting a crime;

must name the party to be arrested, or describe him or her sufficiently to establish identity;

must offer the warrant and the affidavit for inspection upon request;

No handcuffs;

must immediately take the arrested party before a magistrate when demanded, and hold the party for no other purpose (no photographs, no fingerprinting);

You are responsible for everything that happens to the party even if you relinquish custody to an assign;

Unlawful arrest is assault, battery & trespass;

There is no immunity in a false arrest case;

Good faith is not a defense to sustain false arrest.

Lastly . . . If the warrant states as cause to issue, a mere civil/statutory infraction or “offense” not rising to the level of a capital crime, then the arrest is in violation of Article III “Due Process.”. . You do not by accommodation, accept the offer of arrest for any statutory infraction or omission unless the statute defines a capital crime and thereby probable cause exists to issue a warrant based upon said probable cause by the damaged party or his agent acting in his personal capacity.

NOTICE: The arresting officer that is in possession of this information and has been duly presented with said material, has both a civil and legal duty to become informed with the material incorporated herein before an arrest is determined to have cause to be performed.

With Reservation of All Rights, Remedies, Applicable Treaties and particularly noting, ORSChapter 174 – Construction of Statutes; General Definitions – Section 174.030 favoring the Natural Right to prevail in regard to a conflicting statute and is a right that can be reserved pursuant to UCC 1-308, under the Due Process Clause pursuant to Article III.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct; and at all times asserting my reservation of all rights, remedies and applicable treaties without prejudice UCC 1-308.

By my hand, this seventhday of September, 2010,

__________________________________________SEAL

(name)c/o (address as above)(city and state) republicnear [ zip code]

[State] Republic)

) ss. JURAT

( your ) County )

On the ___ day of ________, 200__, (your name)___________________ personally appeared before me and proved to me on the basis of satisfactory evidence to be the person whose name is subscribed hereto and acknowledged to me that he executed the same under asseveration, and accepts the facts thereof. Subscribed and affirmed before me thisday.Witness my hand andseal this 7th day of September 2010.

Notary Signature

My Commission expires on the ____ day of ____________, 20____.

(Blog Master’s Note: The Seal, of coarse, is the right thumb, pressed against the paper with red ink on it. Austin enjoyed complete immunity from the courts in Oregon. A judge was overheard saying “I never want to see that man in my courtroom”. He filed these papers before hand.)

(for Austin) (This is an important concept to study, you should never sign your name to anything with out Reserving Your Rights, that includes checks, mortgages, government documents, etc.)

RESERVATION OF RIGHTS

UCC 1-308 / 1-207, Code & Cites

Performance or Acceptance Under Reservation of Rights.A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice”, “under protest” or the like are sufficient.

Purposes:

1. This section provides machinery for the continuation of performance along the lines contemplated by the contract despite a pending dispute, by adopting the mercantile device of going ahead with delivery, acceptance, or payment “without prejudice,” “under protest,” “under reserve,” “with reservation of all our rights,” and the like. All of these phrases completely reserve all rights within the meaning of this section. The section therefore contemplates that limited as well as general reservations and acceptance by a party may be made “subject to satisfaction of our purchaser,” “subject to acceptance by our customers,” or the like.

2. This section does not add any new requirement of language of reservation where not already required by law, but merely provides a specific measure on which a party can rely as he makes or concurs in any interim adjustment in the course of performance. It does not affect or impair the provisions of this Act such as those under which the buyer’s remedies for defect survive acceptance without being expressly claimed if notice of the defects is given within a reasonable time. Nor does it disturb the policy of those cases which restrict the effect of a waiver of a defect to reasonable limits under the circumstances, even though no such reservation is expressed.The section is not addressed to the creation or loss of remedies in the ordinary course of performance but rather to a method of procedure where one party is claiming as of right something which the other feels to be unwarranted.

GenerallyAccord and satisfaction found in particular casesAccord and satisfaction in generalAccord and satisfaction not found in particular casesAmounts covered by checkAssent to performanceBona fide disputeBreach of fiduciary dutyCertified checksChecks in generalCommentary on lawCommon lawConsiderationConstructionConstruction with other lawsErasure or obliteration of words offering accord”Explicit” reservation of rightsLaw governingLetter reserving rights, timeliness ofMandatory or permissive statuteNon-Code situationsNoticeOral reservation of rightsPurchase ordersPurposeQuestions of factReservation of rights insufficientReservation of rights sufficientService contracts

Common law

Pennsylvania statute dealing with contractual performance under reservation of rights does not apply to use of final payment checks for accord and satisfaction of disputed claims, and thus does not supercede common-law defense of accord and satisfaction. Occidental Chemical Corp. v. Environmental Liners, Inc., E.D.Pa.1994, 859 F.Supp. 791. Accord And Satisfaction 11(3)

Under Florida law, section of the Uniform Commercial Code pertaining to performance or acceptance under a reservation of rights does not supersede common-law doctrine of accord and satisfaction. Burke Co. v. Hilton Development Co., N.D.Fla.1992, 802 F.Supp. 434. Accord And Satisfaction 11(3)

Acceptance of a check in full settlement of a disputed unliquidated claim without reservation operates as an accord and satisfaction discharging the claim, since theory underlying common-law rule of accord and satisfaction is that parties have entered into new contract discharging all or part of their obligations under original contract. Complete Messenger & Trucking Corp. v. Merrill Lynch Money Markets, Inc., N.Y.A.D. 1 Dept.1991, 565 N.Y.S.2d 794, 169 A.D.2d 609. Accord And Satisfaction 11(3)

Provision of uniform commercial code governing reservation of rights preempted common-law accord and satisfaction doctrine with respect to tender of full- payment check, particularly where plaintiffs would have risked loss of nearly five million dollars in refusing check for additional one and a quarter million dollars that they contended defendant owed them. Robinson v. Garcia, Tex.App.-Corpus Christi 1991, 804 S.W.2d 238, writ denied 817 S.W.2d 59, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

Purpose

Statute governing performance of acceptance under reservation of rights was intended to allow party to negotiate check which is conditioned on its face, such as by language stating that cashing of check constitutes release, without gambling with his right to demand balance due at later time. Miller v. Jung, Fla.App. 2 Dist.1978, 361 So.2d 788. Accord And Satisfaction 11(2)

The UCC section pertaining to performance or acceptance under reservation of rights, and found in the introductory article of the code, was intended to apply to transactions falling within any article of the code, including the article governing checks. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(2)

“Performance” within section of the Uniform Commercial Code providing that party who, with explicit reservation of rights, performs or promises performance or assents to performance in manner demanded or offered by other party does not prejudice rights reserved, means “the fulfillment or accomplishment of a promise, contract or other obligation according to its terms,” as distinguished from “payment.” McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 11(2)

When performance of sales contract has come to an end, Uniform Commercial Code section providing that party who, with explicit reservation of rights, performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice rights reserved does not empower seller, as payee of negotiable instrument, to alter instrument by adding words of protest to check tendered by buyer on condition that it be accepted in full satisfaction of unliquidated debt. County Fire Door Corp. v. C.F. Wooding Co., Conn.1987, 520 A.2d 1028, 202 Conn. 277. Accord And Satisfaction 11(3)

The section of the Uniform Commercial Code which provides that a party who performs or promises performance or assents to performance with explicit reservation of rights does not thereby prejudice the rights reserved permits a party to accept whatever he can get by way of payment or performance without losing his rights to sue for the balance of the payment, so long as he explicitly reserves his rights. Ayer v. Sky Club, Inc., N.Y.A.D. 1 Dept.1979, 418 N.Y.S.2d 57, 70 A.D.2d 863, appeal dismissed 422 N.Y.S.2d 68, 48 N.Y.2d 705, 397 N.E.2d 758. Accord And

Satisfaction 7(1)

Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance applied to transaction in which owner of real property paid certain closing costs to assignees of deed of trust, since underlying transaction was discharge of note and deed of trust securing it, and payment was completed by check after attempted reservation of rights. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Where there was no language in correspondence, allegedly proposing full and complete resolution of whatever claims automobile buyer might have had against dealership, indicating check for $113.90 from the dealership was tendered in full satisfaction of all such potential claims, there was no need for the buyer to endorse the check “with reservation of rights” in order to preserve his right to bring action for alleged fraudulent representations and deceptive trade practices in connection with the sale of the automobile. Holley v. Coggin Pontiac, Inc., N.C.App.1979, 259 S.E.2d 1, 43 N.C.App. 229, review denied 261 S.E.2d 919, 298 N.C. 806. Accord And Satisfaction 11(2)

Mandatory or permissive statute

Grain buyer did not waive its right to assert breach of contract by accepting deliveries without reserving its rights, but statute providing for such reservation of rights was permissive rather than mandatory. Jon-T Farms, Inc. v. Goodpasture, Inc., Tex.Civ.App.-Amarillo 1977, 554 S.W.2d 743, ref. n.r.e.. Sales 179(1)

”Explicit” reservation of rights

Term “explicit” as used in statute specifying that party, who with “explicit” reservation of rights, performs or promises performance or assents to performance demanded or offered by other party does not thereby prejudice the rights reserved, means that which is so clearly stated or distinctly set forth that there is no doubt as to its meaning. Bivins v. White Dairy, Ala.Civ.App.1979, 378 So.2d 1122, certiorari denied 378 So.2d 1125. Accord And Satisfaction 11(3)

Assent to performance

Creditor pursuant to accord and satisfaction cannot generally avoid consequences of his exercise of dominion by declaration that he does not consent to condition attached by debtor. E.S. Herrick Co. v. Maine Wild Blueberry Co., Me.1996, 670 A.2d 944. Accord And Satisfaction 11(2)

Provision of the Uniform Commercial Code stating that “A party who with explicit reservation of rights performs or promises performance or assents to performance in any manner demanded or offered by the other party does not thereby prejudice the rights reserved” was inapplicable to the facts of the instant case, in which plaintiff endorsed and cashed defendant’s check after crossing out the notation “Payment in full” and adding the notation “Deposited under protest and with full reservation of all my rights,” since plaintiff did not, within the meaning of the aforesaid Code provision, assent to performance “in the manner offered.” Jahn v. Burns, Wyo.1979, 593 P.2d 828. Accord And Satisfaction 11(3)

Accord and satisfaction in general

See, also, various note numbers under this section.

If creditor cashes check that has been clearly designated as payment in full, creditor is deemed to have assented to terms of the accord and is bound by the acceptance if the other two essential elements for accord and satisfaction exist. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

When check is negotiated that was offered as payment of debt in full, court, in determining whether valid accord and satisfaction has occurred, should consider only creditor’s objective manifestation of assent, not his or her subjective intent. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

Even if creditor affirmatively rejects debtor’s offer of accord and satisfaction, doctrine will be applied if creditor proceeds to cash check bearing statement that it is “payment in full” or otherwise showing intent to establish accord and satisfaction. Pierola v. Moschonas, D.C.1997, 687 A.2d 942. Accord And Satisfaction 11(2)

Delaware common-law doctrine of accord and satisfaction, which does not allow words of protest added by payee to check to change legal effect of full-payment tender, was not displaced by adoption of Uniform Commercial Code (UCC) provision on performance or acceptance under reservation of rights, which provides that party who with explicit reservation of rights performs in manner demanded by other party does not prejudice rights reserved. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1995, 656 A.2d 1085, revised, rehearing denied, on remand 1995 WL 654148. Accord And Satisfaction 11(3)

Two essential safeguards built into doctrine of accord and satisfaction protect creditors: first, there must be good-faith dispute about debt; and second, creditor must have reasonable notice that check is intended to be in full satisfaction of debt. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 10(1); Accord And Satisfaction 11(2)

To prove the existence of an accord and satisfaction, a defendant need not show a plaintiff’s express acceptance of the condition, but rather, the law of accord and satisfaction is that where a creditor accepts a conditional tender, the creditor also agrees to the condition; however, the expression of the condition must be clear, full, and explicit. Faith Reformed Church of Traverse City, Michigan v. Thompson, Mich.App.2001, 639 N.W.2d 831, 248 Mich.App. 487. Accord And Satisfaction 11(2)

Uniform Commercial Code section, providing that party who with explicit reservation of rights assents to performance in manner offered by other party does not prejudice rights reserved, is not applicable to full payment check and does not alter common-law rule of accord and satisfaction as it relates to full payment checks. Flambeau Products Corp. v. Honeywell Information Systems, Inc., Wis.1984, 341 N.W.2d 655, 116 Wis.2d 95. Accord And Satisfaction 11(2)

An accord and satisfaction was not established, when a contractor presented a subcontractor with a check for less than the amount the subcontractor claimed for extra work on a project, and the subcontractor cashed the check without affixing the words “without prejudice” or “under protest;” the contractor was required to, and had not, manifested the intent that the check represented payment in full of the disputed claim. JRDM Corp. v. U.W. Marx Inc., N.Y.A.D. 3 Dept.1998, 675 N.Y.S.2d 691, 252 A.D.2d 854. Accord And Satisfaction 11(2)

In order for acceptance of a check to create an accord and satisfaction, the notation on the check or an accompanying writing must express in plain, definite, and certain terms that the debtor is giving such check in full satisfaction of the debt and that acceptance thereof discharges the debt. Strother v. Strother, Idaho App.2002, 41 P.3d 750, 136 Idaho 864. Accord And Satisfaction 11(2)

An “accord and satisfaction” occurs when one party delivers a check to the other with a notation clearly communicating that the check is intended as full satisfaction of a disputed claim and the check is negotiated by the receiving party. Seger v. Drews, Or.App.1989, 784 P.2d 133, 100 Or.App. 56. Accord And Satisfaction 11(2)

Section of Uniform Commercial Code governing performance or acceptance under reservation of rights does not alter common-law rules regarding accord and satisfaction by tender of full payment check; such section is limited to continuing disputes on executory contracts. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Statute permitting reservation of rights so as not to be prejudiced by performance in manner demanded or offered by other party does not alter principles of accord and satisfaction. Les Schwab Tire Centers of Oregon, Inc. v. Ivory Ranch, Inc., Or.App.1983, 664 P.2d 419, 63 Or.App. 364. Accord And Satisfaction 11(3)

The common-law requisites for an accord and satisfaction have not been abrogated by the Uniform Commercial Code in transactions governed by the Code. John Grier Const. Co. v. Jones Welding & Repair, Inc., Va.1989, 383 S.E.2d 719, 238 Va. 270. Accord And Satisfaction 1

In determining whether an accord and satisfaction has occurred, the question is whether there was an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation; the condition must be so clear, full, and explicit as to not be susceptible to any other interpretation. Avary v. Bank of America, N.A., Tex.App.-Dallas 2002, 72 S.W.3d 779, rehearing overruled, review denied. Accord And Satisfaction 11(2)

Valid accord and satisfaction requires that there must be unmistakable communication to creditor that acceptance of lesser sum will satisfy underlying obligation, and such condition must be plain, definite, certain, clear, full, explicit, not susceptible of any other interpretation, and accompanied by acts and declarations that creditor is sure to understand. Ostrow v. United Business Machines, Inc., Tex.App.-Hous. (1 Dist.) 1998, 982 S.W.2d 101. Accord And Satisfaction 11(2)

“Accord and satisfaction” necessary to create binding contract between parties can occur when parties make agreement to discharge disputed obligation by lesser payment tendered and accepted, but there must also be meeting of minds and unmistakable communication to creditor that tender of lesser amount is on condition that its acceptance will constitute satisfaction of entire obligation. Universe Life Ins. Co. v. Giles, Tex.App.-Texarkana 1994, 881 S.W.2d 44, rehearing denied, writ granted, affirmed in part, reversed in part 950 S.W.2d 48. Accord And Satisfaction 11(2)

Section of the Uniform Commercial Code providing that party who performs with explicit reservation of rights does not thereby prejudice the rights reserved does not abrogate doctrine of accord and satisfaction with respect to situation where payment is tendered on express condition that acceptance thereof shall be deemed to be a satisfaction in full. McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 11(2)

Statute stating that a party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved has not altered common law rule of accord and satisfaction. Pillow v. Thermogas Co. of Walnut Ridge, Ark.App.1982, 644 S.W.2d 292, 6 Ark.App. 402. Accord And Satisfaction 1

An “accord and satisfaction” is present when a debtor tenders a check with a written notation indicating it is in full settlement of all claims and the claimant accepts the tender. Griffin v. Louisiana Sheriff’s Auto Risk Ass’n, La.App. 1 Cir.2001, 802 So.2d 691, 1999-2944 (La.App. 1 Cir. 6/22/01), writ denied 801 So.2d 376, 2001-2117 (La. 11/9/01). Accord And Satisfaction 11(2)

“Accord and satisfaction” is affirmative defense which is proven when there is disputed claim, tender by debtor for less than sum claimed, and acceptance of tender upon negotiation of check; thus, debtor must offer payment to creditor in full satisfaction of disputed claim, and creditor must in turn accept this offer. Creative Marketing Sales, Inc. v. Rayborn, La.App. 5 Cir.1993, 615 So.2d 1107. Accord And Satisfaction 11(2)

Accord and satisfaction found in particular cases

Any attempt by creditor’s agent to strike out notation on debtor’s check, that check was tendered in full satisfaction of debtor’s entire obligation, was not sufficient to preclude accord and satisfaction under Illinois law when creditor cashed debtor’s check, to the extent that check had been tendered in good-faith attempt to satisfy disputed debt. McMahon Food Corp. v. Burger Dairy Co., C.A.7 (Ill.) 1996, 103 F.3d 1307, rehearing denied. Accord And Satisfaction 11(3)

Under Texas law, independent distributor was bound by accord and satisfaction, even if there was bona fide dispute with manufacturer as to liability for amount allegedly due, and even if distributor accepted less than he believed he was due; after negotiations, agreement was reached and distributor began to perform under new terms, which provided for retroactive payments for services already performed. W.G. Pettigrew Distributing Co. v. Borden, Inc., S.D.Tex.1996, 976 F.Supp. 1043, affirmed 127 F.3d 34. Accord And Satisfaction 11(2)

Under Mississippi law, actions of insureds, whose home had been damaged in fire, in cashing check which had been tendered by insurer for damage to home, which stated that it was for fire damage and which had been accompanied by letter stating that check was tendered in full satisfaction of claim, constituted accord and satisfaction of claim against insurer, even though insureds had attempted to reserve rights through notations on check; insureds knew when they cashed check that they could be compromising their case, and statute expressly provides that accord and satisfaction is exception to rule that party may reserve its rights on instrument. Havard v. Kemper Nat. Ins. Companies, S.D.Miss.1995, 945 F.Supp. 953, affirmed 71 F.3d 876. Accord And Satisfaction 11(3)

In context of dispute between buyer and seller regarding price to be paid for seller’s blueberries, accord and satisfaction was created by seller’s cashing of check that was accompanied by letter stating that check represented final settlement; seller’s president admitted that he read letter and that he cashed check, and seller did not indicate to buyer before cashing check that it was not accepting check in final settlement. E.S. Herrick Co. v. Maine Wild Blueberry Co., Me.1996, 670 A.2d 944. Accord And Satisfaction 11(2)

Accord and satisfaction occurred in dispute between “retired” community college administrator and college’s board of trustees over amount of compensation for accrued sick-leave days when administrator cashed check tendered by board in full payment of claim, even though administrator allegedly informed college payroll accountant that he considered check to be only partial payment of claim and check was not notated “payment in full”; fact that administrator did not wish to consider check as payment in full did not mean that he did not understand it was offered to him as such. Nieburg v. Board of Trustees of Community College Dist. No. 522, Ill.App. 5 Dist.1991, 576 N.E.2d 1134, 160 Ill.Dec. 180, 217 Ill.App.3d 169. Accord And Satisfaction 11(3)

Law firm’s endorsement and deposit of conditional check from client would be deemed valid “satisfaction” of disputed amount of client’s bill, for purposes of working accord and satisfaction, even though none of law firm partners actually observed check and conditional language thereon; check was endorsed and deposited by long-time employee of law firm who acted as bookkeeper and was empowered to deposit checks to firm’s account and to handle billings, and firm’s practice of authorizing employee to endorse firm checks could not be used as shield from legal consequences. Shea, Rogal and Associates, Ltd. v. Leslie Volkswagen, Inc., Ill.App. 1 Dist.1991, 576 N.E.2d 209, 159 Ill.Dec. 540, 216 Ill.App.3d 66, appeal denied 580 N.E.2d 135, 162 Ill.Dec. 509, 141 Ill.2d 560. Accord And Satisfaction 11(2)

By cashing the $5,000 check which employer offered his former employee as full and final payment of his severance relocation associated benefits and which employer treated as an accord, employee demonstrated his intent to accept employer’s offer of accord and satisfaction, despite employee’s expressed reservations about amount of the settlement. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2)

Finality language on both face of mortgagors’ check to mortgagee, in payment of deficiency as identified by mortgagee’s attorneys after foreclosure sale, and in endorsement section on check’s opposite side was clear and unequivocal evidence of an accord; when mortgagee’s attorneys endorsed check as final payment and forwarded it to mortgagee, which endorsed and deposited it, acceptance of offer was complete and accord and satisfaction was established as matter of law. Boland v. Mundaca Inv. Corp., Tex.App.-Austin 1998, 978 S.W.2d 146. Accord And Satisfaction 11(2)

Where a judgment is appealed on the ground that the damages awarded are inadequate, acceptance of payment of the amount of the judgment, standing alone, does not amount to an accord and satisfaction of the entire claim. Collins v. Montgomery County Bd. of Prison Inspectors, C.A.3 (Pa.) 1999, 176 F.3d 679, 165 A.L.R. Fed. 727, certiorari denied 120 S.Ct. 932, 528 U.S. 1115, 145 L.Ed.2d 811. Accord And Satisfaction 11(2)

Under Florida law, accord and satisfaction between Medigap insurer and hospital did not occur when check for hospitalization claim was sent directly to patient accompanied by cover letter stating that it represented full payment of claim, patient gave check to hospital without cover letter, and hospital endorsed check and deposited it; thus, hospital’s claim against insurer as third-party beneficiary of policy for additional amounts due for its services was not barred. Vencor Hospitals v. Blue Cross Blue Shield of Rhode Island, C.A.11 (Fla.) 1999, 169 F.3d 677, on remand 86 F.Supp.2d 1155. Accord And Satisfaction 11(2)

Plaintiff’s acceptance of defendants’ check for services rendered did not constitute “accord and satisfaction,” as plaintiff reserved its right under Uniform Commercial Code (UCC) to pursue remainder of its claim when it wrote on back of check that, “[T]he check is deposited under protest, without prejudice and with reservation of all rights of the payee against drawer of this check.” Metropolitan Knitwear v. Trans World Fashions, Inc., N.Y.A.D. 1 Dept.1996, 649 N.Y.S.2d 702, 233 A.D.2d 241. Accord And Satisfaction 11(3)

Landlord’s acceptance of check did not constitute an accord and satisfaction relieving tenant of any further obligation under lease; notation on check that it was “for office heating bills through 1989 as per agreement” by its terms did not cover all outstanding amounts claimed to be owed. Executive Park West I v. Jung, N.Y.A.D. 4 Dept.1996, 637 N.Y.S.2d 832, 224 A.D.2d 990, leave to appeal denied 645 N.Y.S.2d 446, 88 N.Y.2d 803, 668 N.E.2d 417. Accord And Satisfaction 11(2)

Bank failed to establish accord and satisfaction of wife’s claim against bank for funds owed pursuant to certificates of deposit (CD) that had been held jointly by husband and wife until husband’s death; wife accepted check from bank, but there was no evidence of any equivocal language by bank that would put wife on notice that her claims were being released by cashing check, and there was no showing that bank tendered check in complete settlement of wife’s claim. Wallace v. United Mississippi Bank, Miss.1998, 726 So.2d 578, rehearing denied. Accord And Satisfaction 11(2)

Bona fide dispute

Although not abrogated by adoption of Uniform Commercial Code, the accord and satisfaction principles announced in Potter apply only where there is a bona fide dispute, and it matters not whether there is no solid foundation for the dispute as test is whether the dispute was honest or fraudulent. Connecticut Printers, Inc. v. Gus Kroesen, Inc., Cal.App. 1 Dist.1982, 184 Cal.Rptr. 436, 134 Cal.App.3d 54. Accord And Satisfaction 10(1)

Check which bore legend indicating that it was in full accord and satisfaction for any real estate commission claimed by real estate broker against vendor did not operate as accord and satisfaction under the Uniform Commercial Code where vendor never disputed amount owed before check was sent to broker. Century 21 Kaaterskill Realty v. Grasso, N.Y.A.D. 3 Dept.1986, 508 N.Y.S.2d 99, 124 A.D.2d 316. Accord And Satisfaction 11(2)

Subcontractor implicitly agreed to accord and satisfaction when it negotiated general contractor’s full payment check during dispute between parties as to how much general contractor owed subcontractor under subcontract; subcontractor had option to destroy check and sue for damages to which it believed it was entitled or to negotiate check and consider subcontract dispute settled. Danac, Inc. v. Gudenau & Co., Inc., Alaska 1988, 751 P.2d 947. Accord And Satisfaction 9

Creditor’s acceptance of checks with notice of conditions does not as matter of law constitute accord and satisfaction when there is no bona fide controversy or independent agreement. Treadwell v. Treadwell, Ga.App.1995, 463 S.E.2d 497, 218 Ga.App. 823, reconsideration denied, certiorari denied. Accord And Satisfaction 11(2)

Breach of fiduciary duty

Escrow agent’s breach of its fiduciary duty to depositor, through payment of attorney fees out of escrow account without depositor’s permission, superseded its accord and satisfaction defense, that endorsement of check it tendered by depositors’ attorney constituted full satisfaction of disputed amount owed notwithstanding attorney’s deletion of condition to that effect and substitution of other language. Trevino v. Brookhill Capital Resources, Inc., Tex.App.-Hous. (1 Dist.) 1989, 782 S.W.2d 279, writ denied, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

Regardless of whether $60,000 offer for doctor’s share in medical practice was still outstanding or whether letter, payment schedule and checks submitted by doctor’s former colleagues constituted renewed offer, doctor’s acceptance, endorsement and negotiation of checks, which clearly indicated that they represented full satisfaction of doctor’s claim, without protest or reservation operated as accord and satisfaction under New York law. Lande v. Radiology Specialists of Kingston P.C., S.D.N.Y.1992, 806 F.Supp. 1084. Accord And Satisfaction 11(2)

Under Florida law, creditor’s cashing of debtor’s check which was tendered on express condition that it be accepted in full satisfaction of creditor’s claim effected a valid accord and satisfaction, notwithstanding creditor’s alteration which consisted of crossing out acknowledgment on back of check with the words “With Reservation Under Protest” written beneath alteration, where claim was disputed, and tender offer was different from amount originally owed under the debt. Burke Co. v. Hilton Development Co., N.D.Fla.1992, 802 F.Supp. 434. Accord And Satisfaction 11(3)

Under New Jersey law, accord and satisfaction may be found where check bearing notation that it is offered in full settlement of disputed claim is delivered to creditor, who then retains check and makes use thereof; tender having been made upon condition that it be accepted in full satisfaction or not at all, creditor is deemed to have accepted condition by depositing check for collection. In re Lifestyle 80’s Inc., Bkrtcy.D.N.J.1995, 187 B.R. 156. Accord And Satisfaction 11(2)

There is no requirement of actual subjective meeting of the minds as to whether accord and satisfaction is intended because creditor’s assent, in accepting check designated as payment in full, is imputed as matter of law based upon its objective conduct. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

When check is negotiated that was offered as payment of debt in full, court, in determining whether valid accord and satisfaction has occurred, should consider only creditor’s objective manifestation of assent, not his or her subjective intent. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

If creditor cashes check that has been clearly designated as payment in full, creditor is deemed to have assented to terms of the accord and is bound by the acceptance if the other two essential elements for accord and satisfaction exist. Acierno v. Worthy Bros. Pipeline Corp., Del.Supr.1997, 693 A.2d 1066. Accord And Satisfaction 11(2)

If debtor tenders check to creditor as payment in full for less than amount alleged to be owing on debt, creditor may accept check as partial payment, as long as creditor makes reservation of rights in manner that clearly and explicitly notifies debtor that check is not accepted as full payment on debt and that no accord and satisfaction has occurred. Frangiosa v. Kapoukranidis, Vt.1993, 627 A.2d 351, 160 Vt. 237. Accord And Satisfaction 11(2)

Acceptance by creditor of check offered by debtor in full payment of disputed debt is an accord and satisfaction of the debt and no condition of protest or attempted reservation of rights can affect the legal quality of the action. Chancellor, Inc. v. Hamilton Appliance Co., Inc., N.J.Dist.Ct.1980, 418 A.2d 1326, 175 N.J.Super. 345. Accord And Satisfaction 11(3)

Provision of Uniform Commercial Code that one who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved and had not abrogated the Potter principles of accord and satisfaction involving tender of a check or draft which principles have been codified in the Civil Code. Connecticut Printers, Inc. v. Gus Kroesen, Inc., Cal.App. 1 Dist.1982, 184 Cal.Rptr. 436, 134 Cal.App.3d 54. Accord And Satisfaction 11(3)

Where there is an honest dispute as to an amount owed and due between parties and debtor tenders a check with the explicit understanding that it is full payment of all demands, creditor’s acceptance and negotiation of check is an “accord and satisfaction.” Koules v. Euro-American Arbitrage, Inc., Ill.App. 2 Dist.1998, 689 N.E.2d 411, 228 Ill.Dec. 539, 293 Ill.App.3d 823. Accord And Satisfaction 11(2)

Payee who had cashed check covering payment for business payee had referred to drawer, had entered into an accord and satisfaction that payment represented all amounts due in connection with all referrals; there had been meeting in attempt to resolve disputed debt, no agreement had been reached, drawer had informed payee that drawer’s outstanding debt was $812, representing commission from one project, check had contained legend “balance on commissions payment in full,” and payee had indicated his awareness that drawer intended check to be payment for all commissions by inserting word “not” to make legend read “balance on commissions payment not in full.” Mominee v. King, Ind.App. 1 Dist.1994, 629 N.E.2d 1280. Accord And Satisfaction 11(2)

To constitute accord and satisfaction, creditor must either accept payment with condition or refuse it and it makes no difference that creditor protests or states that he does not accept amount proffered in full satisfaction; creditor has no right to cash check and thereby obtain benefit of such offer without its accompanying burden of compromise. A.F.P. Enterprises, Inc. v. Crescent Pork, Inc., Ill.App. 2 Dist.1993, 611 N.E.2d 619, 183 Ill.Dec. 356, 243 Ill.App.3d 905, appeal denied 622 N.E.2d 1199, 190 Ill.Dec. 882, 152 Ill.2d 553. Accord And Satisfaction 11(2); Accord And Satisfaction 11(3)

Acceptance of check given in full satisfaction of disputed claim is accord and satisfaction if creditor took check with notice of condition upon which check was tendered. Schultheis v. McWilliams Elec. Co., Inc., Ill.App. 1 Dist.1991, 579 N.E.2d 1100, 162 Ill.Dec. 286, 219 Ill.App.3d 571. Accord And Satisfaction 11(2)

Words “final payment” written on check did not give payee notice that check was intended as payment in full of maker’s obligation, so that wording did not constitute accord and satisfaction and payee’s acceptance of check was not admission of payment in full. Prepakt Concrete Co. v. Koski Constr. Co., Ohio App. 8 Dist.1989, 573 N.E.2d 209, 60 Ohio App.3d 28. Accord And Satisfaction 11(2)

Where debtor tenders check to creditor as payment in full for less than amount alleged to be owed on debt, creditor may accept check as partial payment on debts so long as creditor explicitly reserves all rights by endorsing check “under protest” or any legend sufficient to apprise debtor the check is not accepted as full payment on debt, and in so doing, creditor does not thereby prejudice any rights reserved on balance alleged to be due; overruling Seeds, Grain & Hay Co. v. Conger, 88 Ohio St. 169, 93 N.E. 892. AFC Interiors v. DiCello, Ohio 1989, 544 N.E.2d 869, 46 Ohio St.3d 1. Accord And Satisfaction 11(2)

Creditor’s cashing of debtor’s check resulting in acceptance of accord and satisfaction where debtor’s check for $5,000 was marked “payment in full” for disputed bill of $9,000, even though creditor had told debtor in advance that check would not be deemed full payment and even though creditor inserted words “partial payment” on check. Butler v. Kocisko, Wis.App.1991, 479 N.W.2d 208, 166 Wis.2d 212. Accord And Satisfaction 11(3)

Defense of accord and satisfaction was available to claim for unpaid bill for services where creditor negotiated check marked “Pd. in Full” by debtor, though creditor unequivocally expressed in writing a contrary intent by striking out “Pd. in Full,” in writing “Rec. on account” and, on back of check, writing “Rec. as partial payment.” Channave v. Kraai, N.Y.Just.Ct.1983, 466 N.Y.S.2d 916, 120 Misc.2d 859. Accord And Satisfaction 11(3)

While the provision of the Uniform Commercial Code to the effect that words such as “without prejudice” or “under protest” are sufficient to amount to an explicit reservation of rights might give guidance to the court in a situation where the application of the section was not clear, the section could not, in an area where it clearly did not apply, be the basis for overturning well- settled rule that the acceptance of a check in full payment of a disputed claim operates as an accord and satisfaction. Blottner, Derrico, Weiss & Hoffman, P.C. v. Fier, N.Y.City Civ.Ct.1979, 420 N.Y.S.2d 999, 101 Misc.2d 371. Accord And Satisfaction 11(2)

Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance applies to transactions involving checks in which party to transaction seeks to reserve right to challenge some part of underlying agreement after check has been transferred. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Fact that company which hauled crushed rock for defendant endorsed check tendered by defendant in full payment of amount owed under protest had no bearing on proving or disproving whether the check worked an accord and satisfaction, but rather focus of inquiry was point in time when defendant tendered the check to company and company’s actions in accepting the check. Perkins v. Highland Enterprises, Inc., Idaho 1991, 817 P.2d 177, 120 Idaho 511. Accord And Satisfaction 11(3)

Creditor’s acceptance of debtor’s check with reservation of rights constituted an accord and satisfaction, despite assertion that statute permitting reservation of rights so as not to be prejudiced by performance in manner demanded or offered by other party had altered principles of accord and satisfaction. Les Schwab Tire Centers of Oregon, Inc. v. Ivory Ranch, Inc., Or.App.1983, 664 P.2d 419, 63 Or.App. 364. Accord And Satisfaction 11(3)

When check is tendered on express condition that it constitutes full payment, creditor’s negotiation of check constitutes accord and satisfaction, even if creditor attempts to reserve its rights before negotiating checks. State, Dept. of Fisheries v. J-Z Sales Corp., Wash.App.1980, 610 P.2d 390, 25 Wash.App. 671. Accord And Satisfaction 11(2)

University medical librarian’s acceptance of payment from university pursuant to arbitration award with respect to her termination constituted accord and satisfaction of underlying dispute as matter of law; no material facts were in issue surrounding delivery and acceptance of payment, and undisputed facts showed that only reasonable inferences regarding parties’ intent were that university intended its check to librarian to be full and final payment resolving dispute and that librarian understood that this was university’s intent. Futrelle v. Duke University, N.C.App.1997, 488 S.E.2d 635, 127 N.C.App. 244, review denied 494 S.E.2d 412, 347 N.C. 398. Accord And Satisfaction 11(2)

Cashing a check known to be offered as an accord and satisfaction establishes, as a matter of law, that payee intended to accept the offer even though he previously voiced reservations about amount of the settlement. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2)

When check listing certain conditions is tendered to party and those conditions are accepted, contract is formed when check is cashed or deposited. Ostrow v. United Business Machines, Inc., Tex.App.-Hous. (1 Dist.) 1998, 982 S.W.2d 101. Accord And Satisfaction 11(2)

If claim is unliquidated or in dispute, if check has been tendered on the express condition that acceptance thereof shall be deemed to be satisfaction in full, and if payee cashes the check, accord and satisfaction results even though conditional language on check has been struck out or modified. Clark v. Traders Ins. Co., Mo.App. W.D.1997, 951 S.W.2d 750.

Painters’ acceptance of homeowners’ check for less than full amount due on contract to paint house operated as an accord and satisfaction of claim against homeowners; uncontradicted evidence plainly showed that homeowners disputed amount they owed painters when painters accepted check, and homeowners gave painters check on which was written “PD. in full for painting.” and painters cashed check, although they scratched out notation. Hardison v. Jackson, Ark.App.1994, 871 S.W.2d 410, 45 Ark.App. 49. Accord And Satisfaction 12(1)

Payment of debt owed contractor for excavating services was not accord and satisfaction as to contractor’s claim for damages allegedly caused by negligent operation of contractor’s bulldozer by one of contractor’s employers, even though cashier’s check issued to contractor stated it was full satisfaction for all money owed to contractor, where cashier’s check was lost and second cashier’s check contained no restrictive endorsement, where there was no dispute concerning amount owed by employers on claim for excavating services, and where there was no intention of parties to affect accord and satisfaction of claim for damages caused by operation of bulldozer. Helton Const. Co., Inc. v. Thrift, Mo.App. S.D.1993, 865 S.W.2d 419. Accord And Satisfaction 11(2)

Contractor’s cashing of check which had been tendered as payment in full and full and final release of any claims resulted in new contract of accord and satisfaction, despite adding of restrictive endorsement, “Under protest and with full reservation of rights to collect the balance owed.” McKee Const. Co. v. Stanley Plumbing & Heating Co., Mo.App. S.D.1992, 828 S.W.2d 700, rehearing denied. Accord And Satisfaction 12(2)

The UCC section pertaining to performance or acceptance under reservation of rights permits a creditor who receives “payment in full” check on disputed claim to accept the check without losing his rights to sue for balance of payment so long as he explicitly reserves those rights. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(3)

When maker tenders check to payee as full payment of obligation, the amount of which is disputed by parties, effect is offer of compromise by maker, conferring upon payee a specific right to consent to full satisfaction of debt by accepting check, or to retain rights under prior agreement by rejecting check; without maker’s express or tacit consent, payee cannot negotiate check and then renounce condition upon which maker made offer. Anesthesia East, Inc. v. Bares, La.App. 4 Cir.1992, 594 So.2d 1085. Accord And Satisfaction 11(3)

Provision of the Uniform Commercial Code governing reservations of rights may not be employed to defeat a compromise and settlement or accord and satisfaction where requisite elements from either of those devices are present or where a check is tendered in final payment for goods or services and is appropriately endorsed by drawer in clear and unequivocal language which check is then accepted and cashed by payee. Eder v. Yvette B. Gervey Interiors, Inc., Fla.App. 4 Dist.1981, 407 So.2d 312. Accord And Satisfaction 11(3); Compromise And Settlement 5(1)

Creditor’s deposit of debtor’s cashier’s check for amount less than full judgment debt, done with knowledge that check had been tendered in full satisfaction of claims, was acceptance of settlement which constituted accord and satisfaction of entire judgment debt, notwithstanding creditor’s verbal assertion that it was not accepting check as full payment. Air Power, Inc. v. Omega Equipment Corp., Md.App.1983, 459 A.2d 1120, 54 Md.App. 534. Accord And Satisfaction 11(3)

Cashing of a check tendered in full payment of a disputed claim establishes an accord and satisfaction as a matter of law and the claim is extinguished, regardless of any disclaimers which may be communicated by payee. Zanone v. RJR Nabisco, Inc., N.C.App.1995, 463 S.E.2d 584, 120 N.C.App. 768, review denied 467 S.E.2d 738, 342 N.C. 666. Accord And Satisfaction 11(2); Accord And Satisfaction 11(3)

Erasure or obliteration of words offering accord

Principles of accord and satisfaction apply even though creditor has erased or obliterated words creating offer of accord. U.S. for Use of Las Vegas Bldg. Materials, Inc. v. Bernadot, D.Nev.1989, 719 F.Supp. 936. Accord And Satisfaction 11(3)

Consideration

For purposes of doctrine of accord and satisfaction, debtor’s tender of $5,000 check marked “payment in full” in satisfaction of creditor’s disputed $9,000 claim was consideration sufficient to support application of doctrine; payment of undisputed portion of disputed claim by check marked “paid in full” could be consideration for disputed portion of claim. Butler v. Kocisko, Wis.App.1991, 479 N.W.2d 208, 166 Wis.2d 212. Accord And Satisfaction 11(2)

When a debtor pays a creditor an amount less than the entire liquidated claim before the debt is due or the obligation to pay it has matured, and the creditor accepts the early payment in full satisfaction of the entire claim, such payment is a sufficient consideration to support an accord and satisfaction of the claim. Thielen v. Thielen, Hawai’i App.1998, 964 P.2d 645, 88 Hawai’i 191. Accord And Satisfaction 11(2)

The payment of any sum whatever prior to maturity of the debt is a sufficient consideration for a promise, and it operates as satisfaction of the entire debt if the creditor accepts it as such; even if the amount paid is relatively small and is much less than the present value of the debt, discounting it at market rates of interest, it operates as satisfaction in full if the creditor accepts it as such. Thielen v. Thielen, Hawai’i App.1998, 964 P.2d 645, 88 Hawai’i 191. Accord And Satisfaction 11(2)

Contract of accord and satisfaction, arising from notation on check that endorsement of check constituted complete settlement of corporation’s claim for payment of moving services provided to partnership and corporation’s endorsement of check without any reservation of rights, was not dependent on separate consideration for its validity. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Amounts covered by check

Landlord’s acceptance of check did not constitute an accord and satisfaction relieving tenant of any further obligation under lease; notation on check that it was “for office heating bills through 1989 as per agreement” by its terms did not cover all outstanding amounts claimed to be owed. Executive Park West I v. Jung, N.Y.A.D. 4 Dept.1996, 637 N.Y.S.2d 832, 224 A.D.2d 990, leave to appeal denied 645 N.Y.S.2d 446, 88 N.Y.2d 803, 668 N.E.2d 417. Accord And Satisfaction 11(2)

Certified checks

Where check was tendered as payment in full for disputed amount and payee caused check to be certified, accord and satisfaction resulted, because certification was equivalent to acceptance by payee and subsequent deposit of check by payee with endorsement “without prejudice and under protest” did not render applicable statute to effect that party who with explicit reservation of rights performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice the rights reserved and such words as “without prejudice,” “under protest” or the like are sufficient. Lange-Finn Const. Co., Inc. v. Albany Steel & Iron Supply Co., Inc., N.Y.Sup.1978, 403 N.Y.S.2d 1012, 94 Misc.2d 15. Accord And Satisfaction 11(3)

Non-Code situations

Printed message on face of insurance check which stated that it was compensation for “any and all claims for bodily injury” was insufficient to notify automobile accident victim that check was intended to be in accord and satisfaction of claims against tort-feasors; for notice to have been sufficient, it would have had to contain reference to date of alleged tort, explicit statement that it was final payment by tort-feasor, and reference to terms on front of check printed above endorsement line on back of check. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 11(2)

Construction contract, in which barely any mention was made of “goods” to be “sold,” while there was exhaustive attention paid to work to be performed, was not covered by the Uniform Commercial Code, in particular, section governing performance or acceptance under reservation of rights, and thus subcontractor’s acceptance of payment offered by general contractor defeated subcontractor’s breach of contract claim, despite attempted reservation of rights by subcontractor. Geelan Mechanical Corp. v. Dember Const. Corp., N.Y.A.D. 2 Dept.1983, 468 N.Y.S.2d 680, 97 A.D.2d 810. Sales 3.1

Doctrine of accord and satisfaction as now expressed in Uniform Commercial Code should be applied to comparable non-Code covered situations, and therefore receipt and acceptance of check tendered by owner and operator of allegedly negligently operated automobile did not constitute accord and satisfaction where payee in receiving, depositing and collecting check made clear that he was accepting payment as partial payment “without prejudice” to his claim for additional sum. Cohen v. Ricci, N.Y.City Ct.1983, 466 N.Y.S.2d 121, 120 Misc.2d 712. Accord And Satisfaction 11(3)

Where, though transaction underlying billing dispute occurred in an area to which the Uniform Commercial Code might not expressly apply, it was appropriate that the rule of the statute be applied, defendant’s reservation of its rights via a letter that it was accepting a certain check only in partial satisfaction prevented an accord and satisfaction regarding billing for party given by plaintiff at defendant’s premises. Ayer v. Sky Club, Inc., N.Y.A.D. 1 Dept.1979, 418 N.Y.S.2d 57, 70 A.D.2d 863, appeal dismissed 422 N.Y.S.2d 68, 48N.Y.2d 705, 397 N.E.2d 758. Accord And Satisfaction 9

Notice

Insurer’s acceptance and cashing of insured’s check which had words “payment in full settlement” on its stub and on back was not accord and satisfaction under Arkansas law that discharged insured’s obligation to pay workers’ compensation premiums; bank employees endorsed and deposited checks into insured’s account, and insured received only photocopy of face of check and was unaware of notations on check’s stub and back. Employers Ins. of Wausau v. Polar Exp., Inc., W.D.Ark.1991, 780 F.Supp. 610. Accord And Satisfaction 11(2)

Party alleging accord and satisfaction may prove requisite notice to creditor that tendered amount was offered as payment in full of creditor’s claim either by extrinsic evidence of agreement or by sufficient notation on the check. Allen v. R.G. Indus. Supply (Ohio , 05-19-1993) 611 N.E.2d 794, 66 Ohio St.3d 229, 1993-Ohio-43. Accord And Satisfaction 11(2); Evidence 450(1)

Section of Uniform Commercial Code governing performance or acceptance under reservation of rights requires creditor seeking to reserve rights in face of full payment check to communicate that intent to debtor before cashing check to enable debtor to consider creditor’s position and either agree or stop payment on check. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Payment by contractor to subcontractor of portion of disputed amount by check with the words “These monies reflect payment in full on the Carillon project” on the back of the check did not operate as an accord and satisfaction, where the bookkeeper of the subcontractor deposited the check in the subcontractor’s bank account without endorsement and the subcontractor was unaware of the words on the back of the check. John Grier Const. Co. v. Jones Welding & Repair, Inc., Va.1989, 383 S.E.2d 719, 238 Va. 270. Accord And Satisfaction 11(2)

Where payee received check for amount less than account stated on his bill, where check had words “landscaping paid in full” printed on bottom left corner, and where on top of reverse side were handwritten the words “cashing of this check constitutes release and waiver of any lien,” payee was not required to notify makers of check, prior to negotiation, that his acceptance was under protest or reservation of rights, in view of statute governing acceptance under reservation of rights. Miller v. Jung, Fla.App. 2 Dist.1978, 361 So.2d 788. Accord And Satisfaction 11(3)

Purchase orders

Where meat packer informed meat purchaser that it was increasing purchase price of pork products by seven cents per pound, purchaser’s only remedy was to reserve whatever right it may have had to old price by sending its purchase orders with “explicit reservation,” or to find supplier who would sell at an acceptable price. Mid-South Packers, Inc. v. Shoney’s, Inc., C.A.5 (Miss.) 1985, 761 F.2d 1117. Sales 75

Service contracts

Uniform Commercial Code (UCC) applied to payments by check made for personal services; conditional statement on check, followed by endorsement reserving rights would not be recognized as accord and satisfaction but would be governed by UCC. Frangiosa v. Kapoukranidis, Vt.1993, 627 A.2d 351, 160 Vt. 237. Accord And Satisfaction 11(2); Payment 33

In cases where the Uniform Commercial Code is applicable, creditor by complying with Code provision can reserve his rights although he accepts a check being conditioned as payment in full, but the rule is otherwise where the underlying transaction involves services or where service predominates. Channave v. Kraai, N.Y.Just.Ct.1983, 466 N.Y.S.2d 916, 120 Misc.2d 859. Accord And Satisfaction 11(2)

Act of plaintiff in accepting a check from defendant for right to publish photographs taken by plaintiff and in negotiating check after placing words on back that check was being “Cashed under protest * * * does not represent full amount claimed” operated as a “reservation of rights” under the Uniform Commercial Code so as to permit plaintiff to pursue his claim against defendant in connection with payment for world distribution rights; plaintiff’s sale to defendant of the rights to the reproduction of his photograph was more analogous to a “transaction in goods” as to which the Code applied than to a “rendition of services” as to which the Code did not apply. Aguiar v. Harper & Row Publishers, Inc., N.Y.City Civ.Ct.1982, 452 N.Y.S.2d 519, 114 Misc.2d 828. Accord And Satisfaction 11(3)

Reservation of rights sufficient

Where seller made delivery of aggregate under express protest and with explicit reservation of rights, it did not waive breach by buyer or prejudice any rights reserved by seller, including right to sue buyer for damages for breach. Shea-Kaiser-Lockheed-Healy v. Department of Water and Power of City of Los Angeles, Cal.App. 2 Dist.1977, 140 Cal.Rptr. 884, 73 Cal.App.3d 679. Sales 196

Creditor’s crossing out debtor’s payment in full notation on check and substituting its own “payment on account” notation constituted reservation of creditor’s rights against debtor as to balance alleged by creditor to be due. AFC Interiors v. DiCello, Ohio 1989, 544 N.E.2d 869, 46 Ohio St.3d 1. Accord And Satisfaction 11(2)

Letter from plaintiff’s attorney acknowledging receipt of letter from insurer rescinding policy and premium refund check, and informing insurer that plaintiff reserved right to commence action against it despite fact that she would negotiate check effectively reserved plaintiff’s rights and prevented an accord and satisfaction, notwithstanding that plaintiff did not indicate that she was reserving her rights on refund check itself. Masi v. Equitable Variable Life Ins. Co., N.Y.A.D. 2 Dept.1991, 577 N.Y.S.2d 146, 178 A.D.2d 515. Accord And Satisfaction 11(3)

Tort claimant’s acceptance of a full-payment check for $200, offered as settlement of tort action arising when defendant parking garage allowed spray paint to drift onto claimant’s car, did not constitute accord and satisfaction, barring further claims, where claimant rejected the condition stamped on the back of the check by writing “No” and initialing it, and where claimant was acting in good faith in seeking to recover costs of repair, estimated to exceed $2,000. Deverna v. Kinney Systems, Inc., N.Y.City Civ.Ct.1989, 536 N.Y.S.2d 944, 142 Misc.2d 271, affirmed 556 N.Y.S.2d 190, 146 Misc.2d 276. Accord And Satisfaction 11(3)

Where the reservation of rights made by plaintiff seller, in respect to accepting defendants’ partial payment check, purportedly representing payment in full, for merchandise which allegedly arrived in a damaged condition, was unequivocal, explicit and unambiguous, and where plaintiff not only cited its reservation of rights on the back of the check, but further informed defendants of said reservation by letter immediately thereafter, the reservation was more than adequate to satisfy the intent of the Uniform Commercial Code, and there was no accord and satisfaction. Kroulee Corp. v. A. Klein & Co., Inc., N.Y.Sup.1980, 426 N.Y.S.2d 206, 103 Misc.2d 441. Accord And Satisfaction 11(3)

When party endorses final payment check “without prejudice and under protest,” he reserves right to demand balance alleged to be due and negotiation of check does not effect an accord and satisfaction. Lange-Finn Const. Co., Inc. v. Albany Steel & Iron Supply Co., Inc., N.Y.Sup.1978, 403 N.Y.S.2d 1012, 94 Misc.2d 15. Accord And Satisfaction 11(3)

Landowner did not waive right to recover excess costs and fees paid to holders of deed of trust in connection with sale of property to third party, by not asserting at closing that his payment was made under protest, but rather earlier letter from landowner’s attorney, informing holders that performance would be “under protest,” was in compliance with Uniform Commercial Code (UCC) provision allowing reservation of rights by party performing or promising performance; statute, which applied because payment was made by check, authorized protest either before or during performance, but did not require that protest be made at any more than one of those times. Margason v. Roberts, Colo.App.1995, 919 P.2d 818, modified on denial of rehearing, certiorari denied. Accord And Satisfaction 11(3)

Doctor’s acceptance and negotiation of check tendered by health group that had terminated her employment was accord and satisfaction of doctor’s claims for salary owed upon termination, including disputed earlier deduction from her pay, as it was undisputed that doctor and health group disagreed upon amount of back pay doctor was actually owed, letter in which health group tendered check clearly conditioned tender as full and complete payment of all claims pertaining to employment, and letter further emphasized that doctor should return check immediately if it was unacceptable to her. Habachy v. Georgia Health Group, P.C., Ga.App.1993, 427 S.E.2d 808, 207 Ga.App. 288. Accord And Satisfaction 11(2)

Endorsement providing “With reservation of all our rights,” which creditor placed on checks received from debtor in amounts less than full amount of debt due, constituted an “explicit reservation of rights” within this section providing that a party who with explicit reservation of rights performs or promises performance or assents to performance in manner demanded or offered by other party does not thereby prejudice rights reserved. Baillie Lumber Co. v. Kincaid Carolina Corp., N.C.App.1969, 167 S.E.2d 85, 4 N.C.App. 342. Accord And Satisfaction 7(1)

Equipment lessor who received check from lessee for rent containing words “CASHING CONSTITUTES PAYMENT IN FULL” and who crossed out the conditional language and notified lessee of its actions, explicitly reserved rights as required by the UCC and suit for balance of rent owed was not barred by accord and satisfaction. Ditch Witch Trenching Co. of Kentucky, Inc. v. C & S Carpentry Services, Inc., Ky.App.1991, 812 S.W.2d 171. Accord And Satisfaction 11(3)

Section of Uniform Commercial Code, [V.A.M.S. § 400.1-207], providing that party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by other party does not prejudice rights reserved was applicable to action of creditor in negotiating debtor’s partial payment check offered in satisfaction of debt with endorsement that check was accepted “under protest and with full reservation of rights to collect the balance owing,” and thus debtor’s check did not constitute an accord and satisfaction. Majestic Bldg. Material Corp. v. Gateway Plumbing, Inc., Mo.App. E.D.1985, 694 S.W.2d 762. Accord And Satisfaction 11(2)

Debtor’s issuance of check for amount less than that owed creditor, with notation “final payment” on its face, together with creditor’s deposit of check in its bank account, constituted accord and satisfaction; although amount of check matched amount on prior invoice, dispute over amount owed existed at time check was offered. Creative Marketing Sales, Inc. v. Rayborn, La.App. 5 Cir.1993, 615 So.2d 1107. Accord And Satisfaction 11(2)

Reservation of rights insufficient

Endorser’s statement of protest after crossing through statement that acceptance and negotiation of check constituted payment in full did not prevent negotiation of check from giving rise to accord and satisfaction under Illinois or Texas law. Western Branch Holding Co. v. Trans Marketing Houston, Inc., E.D.Va.1989, 722 F.Supp. 1339. Accord And Satisfaction 11(3)

Check issued by buyer to seller containing “settlement in full” notation created binding accord and satisfaction upon seller’s deposit, notwithstanding “reservation of rights” language added to instrument by seller at time of its endorsement. Stultz Elec. Works v. Marine Hydraulic Engineering Co., Me.1984, 484 A.2d 1008. Accord And Satisfaction 11(2)

Plaintiffs’ letter failed to reserve rights under Uniform Commercial Code section pertaining to acceptance under reservation of rights; plaintiffs accepted and deposited check for $30,000, explicitly tendered by defendants in full settlement of all claims, without any restrictive endorsement or other contemporaneous or prior reservation of rights, and not until nearly one week later did plaintiffs purport to reserve their rights by letter. McKinney’s Uniform Commercial Code § 1-207. Sarbin v. Southwest Media Corp., N.Y.A.D. 1 Dept.1992, 578 N.Y.S.2d 571, 179 A.D.2d 567. Accord And Satisfaction 11(2)

Payee’s mere scratching out of final payment conditions on check before endorsing and cashing it was not explicit and unambiguous reservation of payee’s rights and, thus, payee could not maintain action for balance of monies allegedly due him; payee was required to further add words clearly bespeaking reservation of rights. Sullivan v. Conant Valley Associates, Ltd., N.Y.Sup.1990, 560 N.Y.S.2d 617, 148 Misc.2d 483. Accord And Satisfaction 11(3)

Section of Uniform Commercial Code providing that party who, with explicit reservation of rights, performs or assents to perform in manner demanded or offered by other party does not prejudice rights reserved did not apply to endorsement of check proffered by insurer in “full settlement” of tort claim for property damage to automobile, even though claimant, prior to endorsement, wrote “under protest” thereon, and thus acceptance and deposit of the tendered check constituted accord and satisfaction irrespective of conditional endorsements. Clarke v. Yvans, N.Y.City Civ.Ct.1988, 530 N.Y.S.2d 465, 140 Misc.2d 129. Accord And Satisfaction 11(3)

Even if section of Uniform Commercial Code governing performance or acceptance under reservation of rights applied to accord and satisfaction, corporation’s attempt to reserve its rights when it cashed check of partnership paying corporation for portion of disputed amount of moving services provided by corporation failed to comply with such section, where no reservation by corporation was attached to check at time it was cashed, corporation merely sent letter subsequent to cashing of check purporting to reserve its rights, and partnership never had opportunity to consider whether to accept corporation’s decision or stop payment on check once corporation declined to accept check in full satisfaction of debt. Air Van Lines, Inc. v. Buster, Alaska 1983, 673 P.2d 774. Accord And Satisfaction 11(2)

Alteration of debtor’s condition from face of check is insufficient to defeat common-law rule of accord and satisfaction, nor may creditor insert provision on instrument that it is accepted only as part payment and without prejudice to his claim for full payment of balance. Trevino v. Brookhill Capital Resources, Inc., Tex.App.-Hous. (1 Dist.) 1989, 782 S.W.2d 279, writ denied, rehearing of writ of error overruled. Accord And Satisfaction 11(3)

Hospital’s decision to deposit check sent by health insurer with transmittal letter stating that no further benefits were payable did not alone establish accord and satisfaction; the letter failed to state that the hospital would be deemed to agree with the insurer if the hospital cashed the check. St. Mary’s Hosp., Inc. v. Schocoff, Fla.App. 4 Dist.1999, 725 So.2d 454. Accord And Satisfaction 11(2)

No accord and satisfaction occurred when lender cashed check tendered by comaker of note even though check included notation “final payment of note”; letter accompanying check acknowledged full amount owing, and merely reflected comaker’s belief that parties had agreed that he would be released if he paid one half of undisputed amount. American Bank & Trust Co. v. Hannie, La.App. 3 Cir.1990, 568 So.2d 216, writ denied 572 So.2d 64. Accord And Satisfaction 11(2)

Creditor, who was payee of check tendered in full and final performance of disputed obligation, could not, by noting on check a reservation of rights, cash the check and thereafter successfully rely on the reservation of rights to defeat express, written condition inscribed on the check by debtor that acceptance constituted payment in full. Eder v. Yvette B. Gervey Interiors, Inc., Fla.App. 4 Dist.1981, 407 So.2d 312. Accord And Satisfaction 11(3)

Where payee scratched out drawer’s words on back of check, “This is the last check to be made payable to the named person for wages, vacation and off days by [drawer],” and then merely endorsed the check with words “without recourse,” such actions by payee did not indicate “explicit reservation of rights” as required under statute, and thus such payments constituted accord and satisfaction of payee’s claim against drawer. Bivins v. White Dairy, Ala.Civ.App.1979, 378 So.2d 1122, certiorari denied 378So.2d 1125. Accord And Satisfaction 11(3)